When unjust damage obliges restitution

429. Declarations. 1. Unjust damaging (actively) is an action by which someone inflicts damage on another in external goods, taking no profit from it.

Damage can be inflicted on a neighbor in two ways: either because the neighbor's thing is destroyed (by action or by omission of a due action), or because the neighbor is impeded from obtaining a good which is owed to him.

2. Damaging is a sin grave from its kind. It is grave or light according as the damage which is inflicted on the neighbor is grave or light.

430. On him who impedes another from obtaining a good. 1. He who impedes another from obtaining a good to which he has a strict right (whether the right is in the thing or to the thing), acts against justice and is bound to restitution, whether he impedes him directly or indirectly, by just or unjust means; because he is the efficacious cause why the other does not obtain what is owed to him by strict right.

He who, even by means not unjust, for example, by prayers, induces a father to deprive his son of the legitimate part of the inheritance to which the son has a strict right from positive law, injures justice and must restore to the son the good of which he is deprived.

2. He who impedes another from obtaining a good to which he does not have a strict right, but does this by unjust means, likewise sins against justice and is bound to restitution; not so if he does this by just means, for example, by prayers and persuasions, although he does it from hatred. The reason for the first is that everyone has a right not to be impeded by unjust means from obtaining a good of which he is not unworthy. Here it must be noted that not only frauds, lies, and accusations, but also importunate prayers and troublesome flatteries by which another's liberty is impeded, are unjust means. The reason for the second is that everyone can use the right which he has of asking or persuading another for his own utility or that of others.

a. A poor man who by detractions or calumnies brings it about that another poor man is deprived of alms; a servant who by defaming another servant brings it about that this one does not obtain the service which he deservedly hopes for; an innkeeper who by calumnies spread against another innkeeper is the cause that guests are turned away from him, sins against justice and is bound to restitution. As to the obligation of restitution it makes no difference whether the injury is inflicted on him who is impeded from obtaining the good, or on him who was going to give the good. Therefore he too is bound to restitution toward the poor man who, by unjustly instilling fear in a rich man, impedes him from giving alms to a determined poor man to whom he was going to give it.

b. He who by prayers induces a testator not to leave an inheritance to Caius, who has no right to it, but to Sempronius; or he who, from hatred, by persuasions induces a bishop, already determined to confer a benefice on the more worthy man, to confer it on a less worthy man, does not act against justice if a strict right to the benefice does not belong to the more worthy man.

3. He who impedes another from obtaining a good of which he is unworthy does not sin against justice nor is he bound to restitution, even if he uses unjust means; because an unworthy man has no right to the good which he seeks, for example, to an office or benefice, nor does he have a right to demand that he not be impeded from obtaining that good by whatever means.

Therefore he who by calumny brings it about that another does not obtain an unjust legacy or office, of which he is not worthy, indeed sins against justice by calumny against the neighbor and is bound to repair the injury to reputation; but he does not sin by the fact that he impedes him from obtaining the good. A woman who by frauds turns her husband away from a prodigal donation is bound to repair nothing to the donee, because the gift can neither be given nor received without sin.

He too is considered unworthy who uses illicit means for obtaining a good; whence justice is not injured if he is turned away from obtaining the good by likewise illicit means. Thus, where Caius had corrupted with money the magistrates on whose vote the conferral of an office depends, in order to obtain their vote, he cannot complain of injustice if another by calumny brings it about that Caius does not obtain the office.

4. He who impedes someone from averting damage from another acts against justice and is bound to restitution by the same reason as he who unjustly impedes another from obtaining a good. Thus he who, by force inflicted, impedes someone from extinguishing fire applied to the house of the neighbor, is bound to restitution toward the neighbor.¹

¹ Sporer-Bierbaum II, tract, n. 242 ss.

A damaging action must be truly unjust, depriving another of a good to which he has a strict right either in the thing or to the thing, because only damage unjustly inflicted induces the obligation of restitution (n. 431).

a. He who by his action inflicts damage on another, but does not injure commutative justice, even if by that action he sins against another virtue, is not bound to repair the damage.

Thus when Caius, with the mind of harming Sempronius, persuades Titius not to make a testament, because he foresees that he would make it in favor of Sempronius, he is not bound to restitution toward Sempronius, because Caius's action (persuasion), although damaging, is not unjust.

b. He who inculpably places a cause of damage and does not remove it, although he could, sins against commutative justice and is bound to reparation of the damage: for everyone must take care that an action placed by himself not harm another, as long as he can impede its damaging efficacy. Yet this obligation does not urge with relatively grave inconvenience, because the damaging action, as only materially unjust, is less voluntary than an action formally unjust.

From this principle the following cases are solved: alpha. a traveler who inadvertently set another's forest on fire; a pharmacist who by error gave poison for medicine; a counselor who inculpably gave harmful counsel, are bound to repair the whole damage which they could have impeded without grave inconvenience and did not impede. beta. He who by error charged another with a grave crime is not bound to retract if he cannot do this without grave detriment to his own reputation.¹

c. An owner who abuses his own thing for sinning does not thereby lose his right in his own thing; wherefore he who takes it away or destroys it does an injury; and he who holds another's thing is bound from strict right to return it to the owner, even if the owner is going to abuse it.

Yet since everyone is bound to impede the sin of his neighbor as far as he morally can, it is not permitted to return a thing to one who will abuse it for sin, unless a greater or lesser inconvenience is feared in proportion to the greater or lesser sin which the neighbor is going to commit.

d. An unjust distributor of offices or benefices injures commutative justice toward private persons who have obtained a strict right to the office or benefice. But they obtain this where a competition is proposed and under an onerous condition it is promised that the worthier man will be chosen. Such is a competition which is proposed with this condition, that a determined prize will be received by him who has made the best work or displayed the best thing.

As to the obligation of restitution which arises on the occasion of various exhibitions which today are made of machines, horses, fruits, flowers, etc., attention must first be given to whether the exhibition has the character of a competition or the character of a means for promoting the cultivation of things and therefore the common good.

In the former case he who displays the best thing acquires a right to the (first) prize, and therefore he who brings it about that the prize is not adjudged to him is bound to make restitution to him. In the latter case no one has a strict right to the prize. Therefore he who is the cause why the prize is not given to him to whom it corresponds by reason of the thing displayed, sins against distributive justice, but is not bound to reparation of damage.

¹ Cf. Lugo, disp. 8, n. 86; Ballerini-Palmieri III, n. 349; Lehmkuhl I, n. 969; Genicot I, n. 513.

455. On competition for ecclesiastical benefices. a. A twofold competition is distinguished: one general, which is proposed for an indeterminate benefice or office not yet vacant; another special, which is proposed for a certain and determined vacant benefice or office. If an office or benefice is conferred after a general competition, it must be conceded that the superior is not bound from commutative justice to prefer the more worthy man to the others, because the more worthy man who is omitted does not have a strict right to a determined benefice.

b. If a special competition is instituted, all teach that the superior is bound to confer the benefice on the worthier man; but not all agree whether the worthier man, by force of the competition, also acquires a strict right to the benefice, so that the superior must compensate him for the damage if, after omitting him, he chooses a less worthy man. The common opinion indeed teaches that the worthier man has a strict right to the benefice; but the opinion of those who deny the strict right of the worthier man seems probable. St. Alphonsus later retracted the opinion which at first he had called probable.¹

¹ St. Alphonsus, l. 4, n. 109; Elench. quaest. reform., q. 47. Cf. Lehmkuhl I, n. 972.

456. In order that a damaging action induce the obligation of restitution, it is required that the damage have actually followed from the action as from its own cause: for he alone can be obligated to repair damage who is author of the damage and therefore either himself effects the damage or in some way moves another to effect the damage.

Therefore the obligation of repairing damage is not had: a. if the damaging action is only the occasion of the damage: for an occasion is not a true cause, but that at whose presence the true cause acts; b. if it is only a condition without which not, or that without which the cause cannot act; c. if it is only a cause per accidens, from which damage can indeed follow, but it is not probable that it will follow from it, and therefore that it will follow is not foreseen: for justice does not oblige one to avoid actions from which damages to another follow only remotely and per accidens.

a. If a theft committed by Titius, from error because of other thefts previously perpetrated by Sempronius, is imputed to Sempronius, who therefore is punished as guilty of theft, the theft of Titius is the occasion of the damage which Sempronius suffers; its cause is the judge's sentence arising from the judge's error.

b. If someone returns a sword to him who abuses the sword to commit homicide, the handing over of the sword is a condition without which the homicide would not have been committed.

c. A cause per se of an effect is said to be that which by its nature is ordered to producing it; thus applying fire to a barn is the cause per se of the burning of the barn. A cause per accidens of an effect is said to be that which by its nature is not ordered to producing this effect, but produces the effect only when external circumstances concur; thus to kindle fire in a remote place, which a wind unexpectedly arising casts into the barn, is the cause per accidens of the burning of the barn. Therefore a cause per accidens: alpha. contributes something to producing the effect, whereas the occasion and necessary condition contribute nothing; beta. its connection with the effect is neither certain nor probable, but only possible, and therefore the effect is not foreseen by the agent.

457. Resolutions. 1. He who by his example entices others to inflict damage is not bound to repair the damage inflicted by them, even if he foresaw, indeed even if by acting he intended, that others would follow his example: for example is not a cause, but a mere occasion of the action of others, who imitate the example. And indeed not the example which they see, but the evil will of the others, is the cause of the damaging action, which itself is the efficacious cause of the damage. Yet he who truly induces others to inflict damage is bound to repair it: for induction is not a mere occasion, but the cause of the action of others.

2. If someone's damaging action is imputed to another, for example, if someone's theft is imputed to another, who suffers damage from it, one must distinguish.

a. If he either did not foresee the damage, or indeed foresaw it and even intended it, but did not use means by which suspicion of the crime would be turned onto the other, he is not bound to repair it, because he is not the cause, but the occasion of the damage: for the cause of the damage is the error or evil will of those who ascribe the damaging action to the innocent person, and he by his action offers an occasion to this error. b. But if he not only foresaw the damage, but if in addition he used means which would supply a grave motive for attributing the action to another, for example, if to steal he dressed himself in another's garments, or if to commit homicide he used another's weapons and threw the weapons sprinkled with blood into his house, he is bound to repair the damage, because he is its cause per se.

To the question whether a guilty man is bound to denounce himself, lest an innocent man be punished as guilty, one must answer thus. In the former case he is not bound to denounce himself as guilty, because, since he is not the cause of the damage, he is bound only from charity to free another from penalty; but charity does not oblige with so great an inconvenience. In the latter case he is bound to denounce himself, because, since he is the cause of the damage, he is bound from justice to free another from penalty; but justice obliges the guilty man even with equal damage to himself.

3. If someone's damaging action of itself is only a cause per accidens of damage, but is placed by the agent with the single and direct intention that the damage follow, this intention brings it about that the effect is voluntary and can be imputed to the agent as a cause per se, provided his action truly existed as the cause of the damage and was placed uniquely, or at least primarily, from this intention. But if the action does not truly cause the damage, it must be called its occasion; and if it is placed from another intention, it is the cause of the damage per accidens.

He who steals from a miser a thing of slight value and by this theft is the cause why the miser falls into a grave illness is the cause of the illness per accidens; but if he intends only this, that the miser fall into illness because of that taking away, he is the cause per se of the illness and must repair his damage, because he is at the same time the unjust cause of the damage. He who places a snare in a road through which his enemy rarely passes, yet with the intention that the enemy, going to pass by chance, break his leg, is the cause per se of the damage and is bound to reparation, because at the same time he acts unjustly. But if from another end he places the snare while at the same time desiring the enemy's damage, he sins internally against charity, and the external action is the cause of the damage per accidens, although unjust.¹

¹ Cf. Lugo, disp. 8, n. 75.

458. Notions. Juridical fault must be distinguished from theological fault. Theological fault is said to be that which constitutes a true sin, whether mortal or venial; juridical fault consists in the omission of diligence and caution required by positive law for forestalling damage, whether that omission is joined with sin or is not. But if damage is inflicted entirely without sin, or without advertence, there is merely juridical fault.

a. A threefold juridical fault is distinguished according to the degree of diligence omitted: broad fault, which is the omission of the diligence which men commonly are accustomed to apply in their own affairs; light fault, which is the omission of the diligence which more diligent and prudent men are accustomed to apply; very light fault, which is the omission of the diligence which only the most diligent and accurate persons are accustomed to apply in their actions. A precious thing received on loan is taken from Caius; now Caius is guilty of broad fault if by night he leaves the house open; of light fault if, on going out, he closes the door of the house but does not lock it; of very light fault if, on going out, he closes and locks the door of the house, but does not examine whether it has been well locked. Recent laws indeed do not expressly have this distinction; yet because in some circumstances they require less diligence, in others greater diligence, they contain it equivalently.

b. Broad fault is ordinarily accompanied by theological fault, both because ordinary diligence must be applied in fulfilling one's office, and because advertence to the damage going to follow can scarcely be absent; but theological fault does not accompany light or very light fault unless the affair is of the gravest moment. For in proportion to the greater gravity and moment of the action or office, greater diligence and solicitude must be applied; hence in affairs of greatest moment the most accurate diligence must be applied. Wherefore it can happen that omission of this diligence, or fault juridically very light, is theologically grave fault or even most grave fault.

c. A damaging action from a threefold source can be theologically lightly culpable: alpha. from smallness of matter; beta. from imperfection of the act; gamma. from a light defect of due diligence, namely where some, but not all, diligence which is due is applied.

d. There are several cautions which by force of positive law are required from architects in raising buildings, from masters in constructing factories and workshops, from mechanics in caring for machines, etc., to forestall misfortunes. Those in whose favor laws of this kind are made have a right to demand that they be observed accurately; but those for whom they are made are not bound in conscience to observe those which exceed the moral diligence necessary for impeding misfortunes, if those whose interest is involved at least tacitly consent to the omission.

459. Principles. 1. In order that a damaging action induce the obligation of restitution, it is required that it be theologically culpable: for no one is obligated in conscience to repair damage unless it was inflicted in conscience. Moreover no one is held for his actions and their effects unless they are voluntary; but an action which is not theologically culpable is generally not voluntary.

a. He who in good faith accepted another's thing and consumed it is bound to restore nothing, unless from it he has become richer. Boys who knowingly and voluntarily indeed steal, but without advertence to the theological malice of their action, which they apprehend only as subject to penalty, are not obligated to restitution. He who from mere inadvertence did not extinguish a candle, whence a fire arose, is not bound to repair the damage. A physician who from inculpable error gives a harmful remedy to a sick man contracts no obligation of restoring: for in all these cases theological fault does not intervene.

b. He who retracts an evil will before the damage is produced by the physical cause is bound to repair it: for repentance of the will cannot bring it about that the obligation of restitution, which has already been contracted when the efficacious cause of damage had been placed with theological fault, ceases. But if the cause of damage is moral, retraction of the will sometimes brings it about that the obligation of repairing the damage ceases, as will be said below (concerning restitution because of unjust cooperation).

2. The obligation of restitution from merely juridical fault is present only after the sentence of a judge, unless someone has obligated himself otherwise by a special contract.

a. Laws which impose the obligation of restitution from merely juridical fault are just laws established by legitimate authority: for they are founded for the common good, namely so that citizens may be rendered more cautious and diligent, and by this reason damages may be forestalled; but just laws oblige in conscience. But those laws are penal, because they punish the omission of prescribed diligence; but penal laws do not oblige before the sentence of a judge, because no one is obligated to impose a penalty on himself.

b. Damage inflicted without theological fault on another's thing held by contract (loan, deposit, etc.) need not be repaired in conscience before the sentence of a judge, because in entering the contract the contracting party did not obligate himself to this.

Nothing indeed prevents someone from obligating himself by a special contract to repair, before the sentence of a judge, damage which arose from merely juridical fault or from a fortuitous event; but without a special contract no one is bound to this, because it is not established that in entering the contract he wished to obligate himself to this.

c. Damage inflicted in fulfilling an office (of judge, advocate, physician, confessor, etc.) without theological fault need not be repaired in conscience before the sentence of a judge: for from the common judgment even of the timorous, he who undertakes an office is not considered to obligate himself except to ordinary diligence; otherwise offices, with detriment to the public good, would be rendered too burdensome.

There are some who contend that in contracts which redound only to the profit of one of the contracting parties, and in quasi-contracts which are entered by undertaking an office, this implicit pact is always contained, namely of repairing damage even when it has arisen from merely juridical fault; and therefore in these cases restitution must be made in conscience before the sentence of a judge. But it can be denied that a pact of this kind is contained in those contracts or quasi-contracts, because neither the law of nature nor human law requires a pact of this kind. But because those offices by their nature demand great diligence, it can easily happen that negligence materially light is gravely culpable.

WHOEVER wilfully causes unjust damage to another, even though he himself obtained nothing by his unjust action, is bound to make restitution to him as far as he can. For he is the unjust cause why another has not what belongs to him, and in order that justice may be done he must cause the person damaged to be put as far as possible in the same condition as he was in before the damage was done. He must then make restitution not only for all the damage which he intentionally caused, but for all consequent losses as far as they were in general foreseen.

In order that such an obligation may be imposed, certain conditions must be fulfilled which it will be well to state more explicitly.

(a) The damage must be inflicted voluntarily, with knowledge and the will to do the wrong. For a man is only responsible in the forum of conscience for his free and voluntary actions. There must be theological fault, as theologians express it, otherwise there will be no obligation in conscience to make good any damage, at any rate before lawful sentence of a judge competent to impose such an obligation. For the law sometimes imposes the obligation of making good damage which has been done, even though it was not foreseen or intended. This is especially the case when there has been legal negligence or the omission of that diligence which the law requires in the circumstances. There are three degrees in this negligence: “ Ordinary neglect has been defined to be the omission of that care which every man of common prudence, and capable of governing a family, takes of his own concerns; gross neglect is defined to be the want of that care which every man of common sense, however inattentive soever, takes of his own property; and slight neglect to be the omission of that diligence which very circumspect and thoughtful persons use in securing their own goods and chattels.”¹ In some cases the law punishes even slight neglect, in others ordinary, in others only gross neglect. The omission of that care which the law requires in the case is called juridical fault, and after sentence there will be an obligation in conscience to make good damage caused through juridical fault, for the laws prescribing this are just, inasmuch as they make men more careful and conduce to the public good.

If something has been done without foreseeing that it would cause damage to another, but this danger was noticed before the damage actually took place, there will be an obligation in justice for him who performed the action to prevent the damage as far as he can; if he does not do this, he will be bound to restitution. For as long as he can prevent the evil consequences of his action, this is under his control, and may, from the point of view of morals, be considered as continuing, and thus, unless he prevents the evil when he can do so, the agent is the voluntary cause of it. If, however, he cannot prevent the damage without relatively serious inconvenience to himself, there is just cause for excusing him. And so, if I inadvertently throw a lighted match on the ground, and then notice that it may probably cause a conflagration with loss to others, I am bound in justice to extinguish the light, otherwise I must repair the damage done.

If slight negligence caused slight damage to another, there will be an obligation of repairing it under pain of venial sin. If slight negligence caused serious loss to another, there is a difficulty as to whether before any judicial sentence there be an obligation to make restitution. Many theologians deny that there is, for no grave obligation can arise from a slight fault, and a light obligation has no proportion to serious matter; there cannot be a light obligation to avoid homicide, for example.²

(b) In order that there may be an obligation to make restitution for causing damage to another, the damage must be really and objectively unjust. If damage to another follows from the lawful exercise of my rights, I am not bound to make it good. If I dig a well in my property and thereby deprive my neighbour of his supply of water, I am not bound to make restitution for the damage. Similarly, I may sell a new machine or invention, though it may indirectly cause loss to many who had on sale machines of older pattern for which now there will be no market.

I may lawfully use persuasion to induce a rich relative to leave his money to me, though others who would have had it thereby suffer loss, If, however, I make use of unjust means such as threats, violence, or calumny, and so prevent another from getting what he otherwise would have got, I commit a sin against justice and am bound to make restitution to the injured party. This is true even though he had no strict right to what he would have got, for at least he had a right not to be balked of his expectations by unjust means, And so in a competitive examination or concursus where something of value is the prize at stake, one who secures the prize by unjust means must make restitution to him who would otherwise have secured it. If there were no certainty of his securing it, restitution as far as possible must be made according to the degree of probability of his success.

(c) The unjust action must be the cause, not merely the occasion, of damage being done to another, in order that there may be an obligation of making restitution. For we are only responsible in justice for damage which we have caused. And so if I commit theft and others are induced to do the same by my bad example, I am indeed bound to make restitution for what I have stolen, and I commit a sin against charity by giving bad example to others; but probably at least, according to many theologians, I am not bound to make restitution for what others stole through my bad example. Similarly, I am not bound to make restitution for damage which was caused accidentally by my action, when there was antecedently no probable connection between my action and the damage caused. As, for example, if I lit a fire in my property, and there was no probable danger of its causing damage to my neighbour, I am not in conscience before judicial sentence bound to make good damage which it caused him on account of an unforeseen change in the direction of the wind. Some theologians would bind the man who lit the fire to restitution in this case if he hoped for the change of wind and intended the damage. They say that the wrongful intention supplies the want of physical causation and puts him under the obligation of making restitution. This opinion is probable, but the opposite also is probable, for although the evil intention makes the man guilty of affective injustice, he is not guilty of effective injustice, for his evil intention makes no difference in the physical sequence of cause and effect, and if he was not the cause of the damage prescinding from his evil intention, that evil intention could not make him the cause.

In the same way, if the theft of one servant is wrongly imputed to another, and this one is dismissed in consequence, the thief is not bound to make restitution to the injured man unless in some way he caused the false imputation.

One who is not sure whether any harm was caused by his action is not bound to make restitution, for a certain obligation cannot arise from an uncertain source. Whether there is any obligation of making restitution for damage which was certainly caused, but it is uncertain whether the author was A or B, is a disputed point among theologians. Many teach that there is an obligation on all the probable authors in common to make good the damage, and each will be bound to make good the whole in default of the rest. This is certainly true in case of conspiracy; but if each acted independently, and it is not certain which one caused the damage, it is hard if the burden of restitution is imposed on someone who perhaps did not cause the harm.³

If an incendiary intended to set fire to the house of A, and by mistake he destroyed the house of B, it would seem that he is bound to make restitution, for all the requisite conditions are present. His action was voluntary, really, and effectively unjust. Some theologians, however, deny that the obligation of making restitution can be imposed in such cases. For the injury should be formal, and they deny that it is formal in this case. He did not intend to injure B; it was purely by mistake that his house was burnt down. Some weight must be allowed to this opinion on account of the authority of those who maintain it, but it would seem to be over-subtle and against the common sense of mankind. The injury was formal, inasmuch as it was voluntary and knowingly unjust. This is sufficient to induce the obligation of making restitution; it is not necessary that the wrongdoer should intend to injure a definite person.

¹ Chitty, The Law of Contracts, p. 412.

² St Alphonsus, 3, n. 552.

³ Bucceroni, 1, n. 1369.

Whether from damaging there arises an obligation of restitution? A damager is called one who injures another's right, harming his neighbor in his goods, yet without becoming richer thereby. Wherefore damaging is a source of restitution diverse from the preceding ones. "Whoever damages someone seems to take away from him that in which he damages him; for damage is so called from the fact that someone has less than he ought to have.... And therefore a man is bound to restitution of that in which he damaged someone." St. Thomas, 2. 2, q. 62, aa. 4, 6; Inst. l. 4, t. 3; C. B. 249 ff. Whatever act of man is the cause of damage to another obliges to reparation of that damage.

Nor indeed does only one's own act oblige to restitution, but also the act of another person or of a thing, of which someone has custody and care. And thus the proprietor of a house which falls because of defect of due conservation or construction is held concerning the damage which comes from it. The proprietor or custodian of an animal which causes pauperies is also held concerning damage. If a damaging act of this kind was committed with the intention of harming, it is called deceit and delict; if without that intention, from imprudence and negligence, it is called quasi-delict and juridical fault. C. I. 1151 ff.; C. G. 1382 ff.; C. H. 1089, 1092, 1104, 1105, 1902 ff.; C. A. 1293 ff.; C. B. 823 ff.; St. Thomas, 2. 2, q. 62, a. 1, ad 2; aa. 4, 7; E. M.

What are the conditions required for restitution from damaging? - In order that a damaging action induce an obligation of restitution, by the law of nature a threefold condition is required, namely that it be unjust in itself, and not only in intention; that it be an efficacious cause of the damage, that is, that it really influence the damage of another; and that it be theologically culpable; that is, that it be unjust truly, efficaciously, and formally. It is proved. It must be an action unjust in itself; otherwise there is no place for real reparation of justice. C. A. 1305. It must be efficaciously unjust; otherwise, since someone is not the author of the damage, he is not bound to repair the damage.

It must be theologically culpable; otherwise an obligation in conscience of repairing damage inflicted by injury by no means arises, since injury was lacking in the forum of conscience. - Hence very probably juridical fault alone, excluding theological fault, does not suffice for compensation of damages. But if juridical fault also induces theological fault, then indeed it obliges to compensation of damages. Fault, namely grave. Cf. 1329. - Cf. 1072, 1073, 1077; Ithur., Cas. 27, nn. 2, 3, 5, 12, 13; L. 550, 551, 556, 570, 572, 613; C. A. 1299, 1300, 1306 ff., 1331; C. B. 276, 273, 280, 823, 827, 833 ff.

If several slight damagings were made, and were made to the same person, they become a grave sin, whether because of the intention of grave damage, or because of moral union with a brief interval, or because of conspiracy with others, and the damage inflicted must be repaired under grave obligation. But if small damages were made to different persons and inflicted separately, and not all coalesce together by moral union by reason of distance of time, slight quantity, etc., grave sin is not present, since no one is gravely damaged, and the one damaging does not become rich from another's property, nor consequently is there grave danger of damage for society, and therefore there is no obligation under grave obligation of reparation of the damage.

657. • An unjust damager is he who injures another's right and harms the neighbor in his goods, yet does not thereby become richer.

A twofold fault is distinguished by which damage can be inflicted, namely theological fault and juridical fault. - Theological fault is that which includes an offense of God, that is, formal sin, whether mortal or venial. - But juridical fault is an omission of diligence from which damage comes to another, whether it is a formal sin or not. - St. Lig., n. 549.

But juridical fault, from the common interpretation of Roman Law, is either broad, slight, or slightest. Broad fault is the omission of diligence which men commonly are accustomed to apply in similar business. Slight fault is the omission of diligence which more prudent and more diligent men are accustomed to apply. The slightest fault is the omission of diligence which only the most prudent and most diligent are accustomed to apply. But this distinction of faults is not expressly commemorated in French law ¹.

¹ It is supposed, however, when for diverse circumstances of the thing the same code requires lesser or greater diligence. See art. 1137 and art. 1927, compared with 1928.

658. Principles. - I. An unjust damager is held to restore 1. the whole equivalent of the thing damaged; thus, for example, if someone culpably burns another's house, he must repay its whole price to the owner; 2. the whole equivalent of damages foreseen besides the damage of the thing, if any have come from it. Hence, for example, if a craftsman is compelled for some time to omit his customary work because you destroyed the instrument necessary to him, you are held to compensate him not only for the value of the instrument, but also for the ceasing profit.

The reason for this principle is plain from what was said, n. 532 and 626. For the injured owner must be made wholly unharmed. But for this it is not enough if the damager pays him the intrinsic price for the thing, when the other has suffered other detriments from the privation of his thing; since he would not recover all that he lost from the unjust damage. Nor is it an obstacle that no advantage came to the damager from the damage; for the whole reason of restitution must be sought not from utility received from another's thing, but from the damage inflicted.

659. • II. In order that a damaging action induce an obligation of restitution, by the law of nature, a threefold condition is required, namely that it be unjust, an efficacious cause of the damage, and theologically culpable; that is, that it be unjust truly, efficaciously, and formally.

1. Unjust. For the obligation of restitution necessarily supposes the strict right of another violated. But strict right cannot be violated except through an unjust action, or one opposed to commutative justice, according to what was said above, n. 532, etc.

2. An efficacious cause of the damage, namely 1. that the action influence the damage through itself, so that this damage is truly judged to follow from it; 2. that it can be imputed to such an agent. The reason for each is clear. For an action cannot be imputed to anyone unless it is his own; nor can the detriment of an action be ascribed to anyone unless his action was the true and efficacious cause of the detriment physically and morally.

But this happens when an action is posited which from its nature, or from the circumstances, has at least a probable connection with the damage. Hence 1. a merely occasional cause of the damage is not sufficient for restitution, because it is not an efficacious cause, but only the occasion of an efficacious cause. Hence if, on occasion of a theft perpetrated by you, another is accused and condemned, you are held by no obligation of repairing his damage. Nor 2. is an accidental cause sufficient for restitution; for this is that which, considered in itself and with the circumstances attended to, does not have a probable connection with the event, and therefore must not be called an efficacious cause. Hence, if you hand a sword to Titius without probable foresight of his abuse of it, you are not guilty of injustice if he commits homicide with that sword.

3. Theologically culpable. For there cannot be an obligation of restoring in the forum of conscience unless an injury was committed in the same forum; nor can conscience be bound by an obligation of repairing an injury which it itself did not bring about. Otherwise even sleepers and the insane, if they inflicted some damage, would be held to restore in conscience, which is absurd. But there is no injury in the internal forum where there is no theological fault; for to injury there is required a will of harming at least indirect, or some foresight, at least confused, of unjust damage. Therefore, etc. - St. Lig., n. 551 and following; Hom. apost., n. 39 and 41.

660. • III. Nevertheless even from merely juridical fault there can be an obligation of restoring in conscience after the sentence of a judge. For a just sentence of a judge must be obeyed; otherwise laws would not provide for public security, and would be empty. But the sentence of which we are speaking is just. For that law is borne for the common good and tends to make men more cautious, lest they inflict damage on others. Besides, before every event it favors all citizens equally. Therefore no one can complain about it. Therefore, etc. Thus commonly. - Billuart, diss. 8, art. 4. - St. Lig., n. 554.

661. Questions. - Q. 1. Whether theological fault is required for inducing an obligation of restitution for damage inflicted on another's thing, which was destined by some CONTRACT, for example, of leasing, deposit, or loan, etc.?

Resp. There is a twofold probable sentence. The first sentence, which appears more probable, affirms absolutely that theological fault is required. The reason is that merely juridical fault does not suffice for inducing an obligation in conscience, as is clear from what was said above in principle II, unless a special pact has intervened. But concerning such a pact there is no proof at all; indeed it is not presumed that the contracting party wished in conscience, under grave obligation, to undertake so great an obligation with only juridical fault. - Thus Lugo, D. 8, n. 106. - Lacroix, n. 177. - Roncaglia; and St. Lig., n. 554, calls this sentence very probable ².

² Card. De Lugo, whom St. Alphonsus follows (ibid., n. 554), although he admits (De Iust., Disp. 8, n. 100) that even without theological fault there can be an obligation of repairing damages on account of slight or even slightest fault, whether this happens by force of an explicit pact among the contracting parties, or by authority of laws which establish the same by way either of legal penalty, or conventional penalty, or insurance, nevertheless denies with others (ibid., n. 102-104) that such an obligation, considered by natural law alone, is present. Indeed he adds (ibid., n. 106-110), from common sense, that neither is this the intention of the contracting parties, nor do the laws according to the common interpretation exact it.

Nevertheless he also adds other things (ibid., n. 110-113), by which it is shown that the practical conclusions of the second sentence do not oppose the preceding sentence. This indeed is nothing wonderful, because Antoine did not advert to it. For what good would you seek or expect from such a one, where solid doctrine and criterion are needed? And indeed, by what pact does Antoine (De Iust., Cap. 3, q. 5, Resp. 4) reconcile these two things, namely that someone omits the diligence due from the nature of the thing and from a pact at least implicit in guarding another's thing, and nevertheless is wholly free from theological fault? Therefore Lugo skillfully warns that, setting aside the case of forgetfulness or inadvertence, in which, short of theological fault, at least grave, there is no obligation of restitution in the forum of conscience before the sentence of a judge, it never happens that there is an obligation of restoring from juridical fault which is not joined with theological fault, and indeed with one equally grave for imposing the burden. The reason is sufficiently manifest, because negligence in the office undertaken of guarding another's thing is, from its genus, mortal fault.

Nor should you object that mortal sin is conceived with difficulty when the juridical fault is slight, and much more if it is the slightest. For slight or slightest juridical fault can have place when someone is held by force and nature of the contract to apply that diligence which is fitting to a business demanding more exact or most exact diligence, and which for that reason, with the nature of this business considered, can be called common, since it is commonly required for such a business. Therefore if the nature of the contract imposes the obligation of the most exact diligence, it is nothing wonderful that its omission imports grave guilt.

Thus indeed Card. De Lugo, whose doctrine St. Alphonsus both embraces and adorns with this encomium (Lib. 3, n. 552): Thus, he says, the most learned Lugo, who after St. Thomas can easily be called princeps among the other Theologians, and not rashly; since in discussing doubts this Author, often with no one going before him, places the sickle so to the root that the reasons which he himself brings forward can scarcely be solved.

The second sentence denies that theological fault is necessary in order that someone be subject to the burden of restitution, if you except the case in which the contract yields to the sole utility of one of the contracting parties, for example, of him who received the thing as a loan, etc. The reason is that when another's thing is granted to someone for his utility, equity demands that he guard it very diligently. Hence there seems to intervene an implicit pact by which the holder of the thing obligates himself to guard it with special care, or to repair the detriment which the thing could undergo from omission of this care. - Antoine, quest. 5. - Collet, c. 2, art. 4, etc.

662. • Q. 2. Whether theological fault is required for the obligation of restitution on account of damage inflicted on another in fulfilling an office, or in observing a QUASI CONTRACT? For example, if a physician from inculpable error has given a harmful remedy to the sick person?

Resp. More probably affirmatively, as in the preceding question. The reason is 1. because an obligation of restoring on account of merely juridical fault in an office, or in a quasi contract, cannot be proved either from natural law, or from positive law, or from the convention of the parties; 2. because such an obligation would be harmful to the public good; for thence it would happen that upright and God-fearing men would be kept away from undertaking the affairs of others, and also from public offices. - St. Lig., n. 555. ³. - Billuart, diss. 8, art. 7. - Lacroix, n. 184, and Antoine himself also, quest. 4.

³ St. Alphonsus namely, after Lugo (De Iust., Disp. 8, n. 93), holds as probable that these are held only from broad juridical fault, and grave theological fault.

But what the same St. Alphonsus adds (same, n. 555) with Laymann, that he who accepts a stipend is held from slight fault, signifies nothing except that this person is held to greater diligence; and therefore St. Alphonsus condemns him of grave fault if he does not apply this.

Yet the Doctors commonly except one case, says Lugo (ibid., n. 90), namely, they oblige to repair damage from the slightest fault, when someone professes himself to be most diligent and most skilled, and offers himself as such to someone seeking not a mediocre but a most diligent artisan. Yet he limits this doctrine unless he receives only the common stipend. But the reason of the resolution is plain from what was premised in the preceding Note.

Q. 3. Whether he is held to restitution who indeed inculpably placed the cause of damage, but afterwards did not impede it, although he could have impeded it?

Resp. Affirmatively. The reason is that each one is held from justice to prevent his action from harming the neighbor; therefore he is also held to prevent the evil following from his action from persevering. - Thus commonly. - St. Lig., n. 564.

Hence 1. he who inculpably set fire beneath another's house, when he adverts to the danger of fire, is held from justice to impede it, if he can; 2. likewise the pharmacist who by error sold poison for medicine must from justice warn the buyer; 3. likewise he who by error said something grave against the reputation of another is held afterwards, when the error has been known, to correct it; and if he does not do so, he sins gravely and is obligated to the reparation of all damages which come from this.

663. • Q. 4. Whether damage following from a cause indeed culpably placed, but already retracted when the damage is inflicted, must be repaired?

Resp. Affirmatively, at least if that damage was determined and foreknown in species. Thus, for example, if someone voluntarily gave poison to another, and afterwards cannot impede its effect, however much, repentant of the deed, he may wish it, he will be held to repair the damages coming from the homicide. The reason is that he who placed the cause of the damage always continues to influence it efficaciously. - Thus commonly ⁴.

⁴ Hence it happens that retraction does not even prevent this, namely that the effect afterwards perhaps following induces irregularity or some censure. Suarez had already adverted to this (De Peccat., Disp. 3, Sect. 4, n. 7), and Lugo afterwards (De Poenit., Disp. 16, n. 445) hands it down as the common sentence: However much, he says, the past will may in fact be retracted, still, if the effect of death afterwards follows, he who had given poison will incur irregularity or excommunication, according to the common sentence of nearly all, as if the will had not been retracted; because, namely, by that retraction it is not taken away that the effect followed as voluntary..., whence it absolutely denominates him a homicide; otherwise it would not render him irregular.

Nor is the reason valid which St. Alphonsus reports against this from the Salmanticenses (De Cens., Cap. 1, n. 155; Lib. 7, n. 40), namely that censures are not borne except against the contumacious; but he is not such who has already retracted the evil will. For it is answered that the contumacy of will which is required for incurring censures is that by which someone knowingly and willingly transgresses the law, not the lack of retraction before the ultimate effect; for a censure does not punish the sin of an evil will persevering up to the consummation of the effect, but the sin of a will inflicting death through the positing of a cause, although it was expedient and wisely provided by the Church that a penalty of this kind not be incurred unless the effect followed, lest, namely, on account of the uncertain event of the crime, the censure be uncertain, and lest it happen that one be regarded as excommunicated on account of homicide who afterwards was detected as not guilty of homicide, since death had not followed.

Q. 5. Whether damage must be repaired which has indeed been inflicted by accident, but while applying oneself to an illicit work?

Resp. Negatively, because that damage is not voluntary, since it was not foreseen even in a confused way. Nor does it matter that the action was illicit; for this pertains nothing to the account of justice. Thus a Cleric who, while applying himself to hunting against the prohibition of the Church, kills a man instead of a wild beast, is no more guilty of injustice than a layman who had done this. Indeed damage inflicted by accident need not even be repaired, even if it happened on the occasion of an unjust action, because it has no connection with that action. Hence he is not held to restitution who kills Titius, whom he did not at all see nor know to be present, while he was directing a gun at Caius. - Thus very commonly. - Vogler, n. 170. - Lugo, D. 8, n. 72 and 82. - St. Lig., Hom. apost., n. 39.

664. • Q. 6. Whether you are held to repair damage which you brought upon someone from error, while you intended to harm another; for example, if you burn the house of Caius, which you think is the house of Titius your enemy?

Resp. It seems that it must be affirmed. For in that case all the conditions required for urging restitution are present, namely an unjust action, an efficacious cause of damage, and theological fault. Nor should you say that your action is not unjust relatively to Caius, whose damage you did not will; for you intended to destroy that thing, wholly determined. But by destroying it you undertook the burden of repairing that same thing. But it matters nothing whose it may be; for the question is not about the name, but about the thing. Therefore the error does not affect the substance of the act, but something merely accidental. - Thus commonly, as St. Lig. admits, although he dissents. - Vogler, n. 202. - Bonacina. - Sanchez. - Busemb., etc.

Some nevertheless deny with St. Alph., n. 629, namely Lugo, D. 17, n. 75. - Lacroix, n. 200 and following. - Their reason is that the action was not voluntary toward the damaged person, since it proceeded from inculpable ignorance of his right. But from what has been said this reason seems to have little force ⁵.

⁵ ** The VV. (p. 923 in note) object that the opinion of St. Alphonsus rests on this unshaken principle: In order that you be held to restitution, it is required and suffices that your damaging action be at once affectively and effectively, or formally and materially, unjust; if either of these is lacking, the obligation of restoring ceases.

Resp. St. Alphonsus (Lib. 3, n. 556), with Busembaum, thus defines and distinguishes material and formal injuriousness: Damaging injuriousness is twofold, namely material, as, for example, when someone destroys, accepts, or retains another's thing in good faith, that is, judging probably that this is licit for him, or that it is his own; formal, by which someone destroys, accepts, or retains another's thing in bad faith, that is, when he knows or can and ought to know that this is not licit for him and that the thing is not his own. See Less., Laym., Bonacin. But, so that we may insist on the example which both St. Alphonsus (Lib. 3, n. 629) and the VV. use, whoever burns and destroys the house of a friend, thinking that it is an enemy's, certainly does not fail to know that the house which he destroys is another's; and this is true even if it is not the house of him whose he believes it to be. Therefore knowingly and willingly he burns and destroys a thing which he knows is not his own. But from the definition this is not material but formal damaging injuriousness.

But the argument which is commonly brought against this (see St. Alph. and the VV. in the cited places), namely that from the killing of a friend who was thought to be another, namely an enemy, deceit is absent, because in no way did you intend to kill Paul the friend; indeed rather you would in no way have killed him if you had known that he was Paul the friend, this argument, I say, Molina had already anticipated thus (Tom. 4, Tr. 3, Disp. 30, n. 5): To the argument of the contrary opinion, he says, the consequence must be denied. For although that homicide did not have deceit with comparison to Paul, nevertheless he had deceit as regards that killing, insofar as it was the killing of a certain man, whom, beyond the estimation of the one killing so unjustly and with deceit, it happened to be Paul. But it is enough that that homicide was committed simply with deceit.

Molina (ibid., n. 2) confirms this response from L. Eum qui 18, § 3, De iniuriis, where it is read thus: If an injury is done to me by him to whom I am unknown, or if someone thinks me to be Lucius Titius, when I am Caius Seius, that which is principal prevails, namely that he wished to do an injury to me; for I am certain, although he thinks me to be other than I am, and therefore I have the action for injuries. But Molina adds: Here you see that the fact that the one bringing injury upon me thinks me to be another man in number than I am does not take away his fault, nor excuse him from penalty, because in reality he intends to do an injury, and does it with deceit.

But he had first explained the matter thus (ibid.): In that killing of Paul two things must be considered. One is the unjust killing of a man; but the other is of this man in singular, suppose Paul... But that killing, insofar as it has the account of the unjust killing of a man, was deceitful, because it was done from the intention of committing homicide concerning that man. But it is by accident that that killing does not have the account of deceitful homicide because it terminated at this man in singular.

It is confirmed and declared with the same Molina (ibid.): When, he says, in some delict there is knowledge of the delict joined with invincible ignorance of some circumstance which adds to the delict either gravity or a diverse species, then that ignorance, just as it excuses from the fault which results from that circumstance, so excuses from the penalty which corresponds to the circumstance. But just as this ignorance does not excuse from fault for that part of which knowledge is present, so neither can it excuse from the corresponding penalty and consequent burdens.

And hence it is plain how far that which St. Alphonsus (l.c.) replies after others has force: It is answered, he says, that this proceeds in the external forum, where the presumption of knowledge of the injured person stands against the one injuring, to whom belief is by no means given if he asserts that he wished to offend another. For in the external forum it is not a presumed delict that is condemned and punished, but a delict perpetrated in the unjust killing of a man, whoever this may have been. Indeed it so far departs from the true that the forum relies on such a presumption of knowledge and takes no account of an error of this kind, that the laws expressly establish the contrary. Thus (L. Illud 3, § 4, ff. de iniuriis): If someone struck a free man, while he thinks him his own slave, he is in such a case that he is not held for injuries. And again (L. Si cum servo 4, ff. same title): If, when I wished to strike my slave with a fist, I unwillingly struck you standing next to him, I am not held for injuries. Therefore even the external forum takes account of this error. Yet the distinction between the preceding and this case Gotofredus indicates very well in a note: For, he says, my intention was of applying myself to a legitimate thing, that is, of punishing a slave. And Molina had gone before (l.c., n. 3), saying: He who thus intended to strike his own slave intended to do no injury, but was using his own right, wishing to punish his own slave. But truly it cannot be said that he used his own right or did not intend to do an injury, who wished to kill or strike an enemy, or wished to burn the house of his enemy. But whoever, knowing that he inflicts a damaging injury by his act, inflicts it with a wholly free will, surely takes upon himself the consequences of his action, which are certainly formally unjust.

It could easily be shown here by what route both Tamburini and Sporer, and some others after them, were driven sideways by certain arguments sought merely from some parity, which indeed is very easily detected as limping. But these arguments cannot be suitable to a brief Note.

665. • Q. 7. To what is he held who indeed inflicted grave damage, but with slight fault, for example, from defect of advertence, etc.?

Resp. More probably he is held to nothing. For he cannot be obligated either under grave or under light obligation: 1. not under grave obligation, for a grave obligation has no proportion with slight fault; 2. nor under light obligation, because a light obligation has no proportion with a grave thing. - Thus St. Lig., n. 552. - Lugo, D. 8, n. 56. - Vogler, n. 109. - Lessius. - Roncaglia, etc.

Others, however, oblige him under grave obligation to repair the whole damage. - Others indeed to the whole, but under light obligation. - Finally others to some part only, according to the proportion of the fault. But these sentences seem to introduce the greatest inconveniences.

666. • Q. 8. Whether he who inflicted grave damage through several venial faults deliberately committed is held under grave obligation to repair that whole damage?

Resp. 1. Affirmatively, if the damage was inflicted on the same person, although the damager did not sin gravely. The reason is that he is held to repair the whole damage committed voluntarily and freely. But the whole damage was freely inflicted, and besides is grave in the hypothesis; therefore that whole damage ⁶ must be repaired under grave obligation. - Vogler, n. 124 and 126. - Lugo, D. 8, n. 69, etc.

⁶ St. Alphonsus nevertheless warns (Lib. 3, n. 553) that it suffices for avoiding mortal sin that only that small matter which completes grave matter be restored, as Sanchez, Lessius, Vasquez, etc., more probably hold.

Resp. 2. But more probably negatively, if minute damages were inflicted on diverse persons. The reason is that on the one hand no one suffers grave damage, and on the other hand the damager does not become rich by another's thing ⁷. Hence the present case differs from the similar question related above, n. 630, because a thief becomes rich from minute thefts, but not a damager.

⁷ It has already elsewhere been noted that the depravity of theft does not consist in this, that someone becomes rich from another's thing, but that he becomes rich unjustly. But this injustice resides in the violation of another's right, which is present in the same way both if someone becomes richer from the violation of another's right and if he does not become richer, because, for example, either he immediately consumes, or loses, or destroys the thing stolen, or inflicts damage while taking nothing to himself. And since the violation of another's right carries with it the obligation of repairing that same right, this is present and must be present both if the violator became richer from it and if he did not become richer. Since these things are so, as regards the present matter it ought to be evident that he who has harmed several by minute damages in such a way that the collected matter of all the damages together must be judged grave is in absolutely the same condition and therefore is bound by the same obligation of restoring, both if he has been made richer from the matter of the several thefts, and if he has by no means been made more rich, since either he at once consumed what was gradually stolen, or harmed others while stealing nothing for himself. Therefore if any obligation of restoring is present on account of minute damages inflicted gradually on several by thefts from which someone has been made richer, the same obligation must be said to be present even when from the inflicted damages no utility has accrued to the damager. For absolutely the same reason prevails in both cases.

Q. 9. Whether one who thinks from invincible error that the damage inflicted by him is much less than it really is, is held to restore all that damage if afterwards he recognizes the true price; for example, if someone throws into the sea another's gem worth 100, while he believes it to be worth only 40?

Resp. Probably he is held to restore only pro rata of the known damage, because damage is not judged willed which is invincibly unknown. - St. Lig., n. 615. - Elbel, n. 90. - Vogler, n. 189. - Carrière, n. 1151, against others.

Nevertheless there will be an obligation of repairing the whole damage if at some time, on account of a suspicion of greater price arising at least in a confused way, the whole damage becomes voluntary.

667. • Q. 10. Whether an owner is held to repair damage brought upon the neighbor by his animals?

Resp. 1. Affirmatively, if from theological fault he neglected to watch over the animals. For each one from natural right is held diligently to guard his animals, lest they inflict damage on others, just as he ought to take precautions lest detriment come to the neighbor from his own actions.

Resp. 2. But if theological fault has been excluded, he is indeed not held before the sentence of a judge, as is plain from principle II, n. 659; but he is certainly held when sentence has been pronounced, as is clear from principle III.

Q. 11. Whether he is held to restitution who by his bad example induced others to inflict damage, if he foresaw the efficacy of the bad example?

Resp. The first sentence, the more probable one, denies it, because he who gives bad example is not the cause of the damage, but a mere occasion. For an evil action does not through itself tend to this, that it should excite others to imitate it. Therefore the other damagers are determined wholly from themselves to inflict the damage. - St. Lig., n. 537 and l. 2, n. 45. - Salmant. - Laymann. - Sanchez. - Lugo, etc.

477. Restitution on account of damage inflicted must be made to equality; and therefore the unjust damager is bound not only to restore the price of the thing destroyed, but also to compensate all damages which effectively and culpably followed from his action; thus he who culpably burns another's house must pay not only its price, but also the expenses which the owner incurs under this head, until a new house has been built or procured. The reason is that restitution is an act of the virtue of justice, which requires that there be rendered to the neighbor, to equality, whatever is owed to him from strict right.

Therefore he who has inflicted grave damage with grave fault is bound under grave sin to repair the whole damage.

478. But if damage is inflicted from light theological fault, a distinction is needed:

(A) If the lightness of the fault arises from lightness of matter, it is certain that restitution must be made under light sin.

(B) If the fault is venial from imperfection of advertence or consent, more probably, with natural law alone considered, there is no obligation of restoring grave damage inflicted; e.g., if a servant from venial negligence left the doors open, from which it happened that a grave theft was committed; - if from venial negligence death is inflicted with a gun. For such an obligation cannot be imposed under grave sin: because the obligation of repairing great damage is something grave; but a grave obligation cannot arise from a light delict, since there ought to be proportion between the delict and the penalty. Indeed, according to some,¹ this obligation cannot be imposed under light sin; for there ought to be proportion between the gravity of the obligation and the matter of this obligation; but it seems more probable, from the common sense of honorable men, that the obligation of repairing the whole damage must be imposed under light sin.

¹ Thus Lugo, disp. VIII, n. 56; St. Alphonsus, n. 552 with the authors alleged there.

Yet not a few theologians² probably say that restitution must be made according to the proportion of the fault, and therefore that a light part of the damage must be repaired under light sin.

² Laymann, lib. III, tr. III, c. 6, n. 4; Carriere, n. 1156.

In practice, the damager is not to be compelled to restitution before the sentence of the judge, but only exhorted to compensate the damage in the better way in which it can be done, by arranging the matter with the injured person.

479. (C) If the fault is venial, although fully deliberate, because grave damage was inflicted through several venial acts, a distinction must be made:

(a) If small damages have been inflicted upon the same person, and are joined by moral union, there is a grave obligation of restoring; for the damager is bound to repair the whole damage deliberately and unjustly committed by him; but in this case the damage inflicted is something grave, and the gravity of the obligation is proportioned to the gravity of the matter; therefore under grave sin he is bound to repair the grave damage.

(b) But if light damages have been inflicted upon diverse persons, so that no one has suffered grave damage, more probably the obligation of restoring is only light; for, since no one has been gravely injured, no one can under grave sin compel the damager to reparation; moreover, since from this damage he has not become richer, he is not bound to restore under grave sin by reason of detention of another's thing; and thus there is a difference between a damager and him who has committed small thefts.

480. (A) He who by an inculpable or lightly culpable action has posited the cause of another's damage is bound to impede such a cause from producing its effect, provided he can effect this without relatively grave inconvenience; otherwise he is bound to restitution, and indeed under grave sin, if the damage is grave.

Thus, e.g., a physician or pharmacist who inadvertently prescribes or furnishes poison, and afterward notices this; - he who inadvertently casts fire into a heap of hay is bound, if it can be done, to extinguish the fire; he who from error gravely injures the reputation of the neighbor, etc. For each one is bound by equal right to abstain from an unjust action, and to retract this action once posited, if it can be done; otherwise, he truly intends and perpetrates the evil effect which follows from it.

But if the damage cannot be impeded without one's own relatively grave inconvenience, there is a sufficient reason for permitting the evil effect. For judging about the relative gravity of the inconvenience, this must be compared with the damage which the neighbor is going to suffer.

481. (B) If someone culpably has posited the physical cause of some damage, and afterward has retracted the evil will before the whole damage is produced, he nevertheless is bound to restitution of the whole damage actually inflicted, if in fact he did not impede it; for he who voluntarily posited the physical cause of damage, however much he afterward grieves, is truly the efficacious and culpable cause of the damage, and is bound to repair it.

Thus he who has given poison to another, although afterward repentant he furnishes an antidote, but uselessly, truly is the cause of death; likewise he who, wishing to burn a house, has applied torches to the house, even if he tries to extinguish the fire, truly is the efficacious and free cause of the burning and is bound to restitution.

482. (A) The error concerns the gravity of the damage. He who by invincible error thinks that the damage which he inflicts is less than it truly is, more probably by natural law is bound only to restoring the part of the damage which he apprehended in his mind, unless however he apprehended the whole damage confusedly (e.g., a maidservant destroys or throws into the sea a jewel which she thinks to be worth ten coins, and which in fact is worth one hundred). For only that damage must be repaired which was voluntarily inflicted; but the excess of the damage was not voluntarily inflicted, since it was invincibly unknown. - But if the whole damage is apprehended confusedly (e.g., a homicide confusedly foresees various damages going to arise from this), the whole must be repaired, since it is sufficiently voluntary.

483. (B) The error concerns the injured person; - e.g., if someone burns the house of Peter, while he wishes to burn the house of Paul his enemy; or, intending to kill Caius, kills Titius. - A twofold opinion is given.

(a) Some, such as Lugo, Lacroix, and St. Alphonsus,¹ say that the damager in this case is not bound to restitution; for, in order that an action oblige to restitution, it is necessary that it be materially and at the same time formally injurious toward the injured person; but in the case, the action is materially injurious to Peter, and formally injurious to Paul, but not materially and at the same time formally injurious to the same person; hence there is no obligation of restoring anything to Paul, who in fact is not injured, nor to Peter, who is injured apart from the intention.

¹ Lugo, disp. XVII, n. 78; Lacroix, lib. III, p. 2, n. 200; St. Alphonsus, n. 629.

(b) Yet the more common and truer opinion is that the damager is bound in this case to restitution; for he is truly the unjust, efficacious, and culpable cause of the damage inflicted: unjust indeed, since he knows very well that he has no right to burn this house or kill this man, whoever he may be; efficacious, since he in fact burns the house or kills the man; culpable, since, notwithstanding the error about the person, he knows and wills to destroy a house or life, which he is prohibited by strict justice from destroying; - therefore nothing is lacking for an injury, whether material or formal. - In truth the error is not about the substance, but about the accidental things of the damaging action: he indeed thinks that the man present is Caius, but at the same time he knows that the man here and now present is innocent, and he wills to kill this innocent man and in fact kills him. - Nor can it be said that he is so disposed that he would not elicit a sinful act if he knew that this man was not his enemy; for the question is not what he would do or not do, given the hypothesis, but what he wills to do and does; but he wills to kill and in fact kills an innocent man. Hence we think that this second opinion is to be followed in practice; the reason which the defenders of the first opinion bring forward is indeed subtle, but is opposed to the moral sense of men, and therefore is to be rejected.

484. Whatever may be the case, there are certain conclusions about which almost all grave theologians agree:

(a) Restitution must certainly be made when the reason for inflicting damage is not taken from the person as such, but from his office; e.g., if someone, intending to kill a priest from hatred of religion, strikes Titius the priest, thinking him to be Caius the priest; say the same of him who wished to kill a magistrate, a soldier.

(b) Restitution likewise certainly must be made when sufficient care has not been employed for avoiding the error: because then, at least confusedly, the damager foresaw the evil effect which followed from it.

(c) When the damager, from two things pertaining to the same owner, indeed wishes to destroy one, but through error destroys the other, he must restore at least the price of the thing which is of lesser value; for the injury, both material and formal, falls upon the same owner; but injury is inflicted upon the owner, not upon the things.¹

¹ Therefore the contrary solution which Konings gives seems to us to be rejected, n. 758, 3, according to whom he is bound to nothing who, while he wishes to kill the goat of Maurus, kills the cow of the same man, which he was not seeing; he thinks this follows from the very rigor of principles; but is this not an evident sign that the principles themselves are contrary to justice, since from them a conclusion is inferred which upright men commonly reject as unjust?

489. Here the principles concerning the indirect voluntary are to be applied:

(a) If the drunkenness was voluntary, and the damager, before he lost the use of reason, at least confusedly foresaw the damage which can follow from drunkenness, he is bound to restitution.

(b) But if the drunkenness was involuntary, or if he could not foresee the evil effect, he is excused from the burden of restitution in the forum of conscience; but if he is condemned by the judge to repair the damages on account of juridical fault, he must obey.

Damaging taken broadly includes also theft and robbery; for the thief and the robber cause damage to a neighbor, and St. Thomas says: "Whoever damages someone seems to take away from him that in which he damages him";¹ nevertheless, according to the stricter acceptance and the one commonly used today, damaging is distinguished from theft and can be defined:

¹ Cf. S. theol. 2, 2, q. 62, a. 4.

91. Definition. Unjust damaging is an action by which someone causes damage to another, without himself taking material profit from it. Therefore the damager causes damage to another and is not himself enriched; but the thief causes damage to another and is himself enriched. Hence, e.g., he who burns another's garment is a damager; but he who takes another's garment away for himself is a thief. Other things being equal, damaging is usually a graver sin than theft, because it often proceeds from hatred of neighbor, whereas theft is usually caused by disordered concupiscence of money, or by the neediness of the one stealing, and by other motives which are not as gravely sinful as hatred of neighbor.

92. Divisions. 1. By reason of the cause, damaging is divided into solitary and cooperative, according as the damager causes damage either by himself alone or with others helping.

Cooperative damaging is worse than solitary damaging, because in it not only justice but also charity toward the neighbor is injured by scandal or cooperation in evil. We shall treat cooperative damaging specially in the following article.

2. By reason of the object, damaging can be a) in supernatural goods, b) in natural goods, whether bodily or spiritual.

The worst damaging is in supernatural goods. Hence he who destroys sanctifying grace, faith, and other supernatural gifts in the soul of his neighbor sins most gravely. Enough has been said of this damaging above, I, n. 605 sqq., in the tract on scandal. But in natural goods damage can be inflicted upon a neighbor in two ways: either by the fact that the neighbor's thing is destroyed by an unjust action or omission (e.g., the neighbor's garment is burned either intentionally or from culpable negligence), or by the fact that the neighbor is unjustly kept from the obtaining of a due good (e.g., someone unjustly induces a father to exclude his son from the inheritance). The natural goods in which unjust damaging can occur are many, e.g., reputation, honor, body, life, fortune, etc.; concerning all of these, something will be said below.

3. By reason of the mode (or also of morality), damaging is either purely material or formal. Formal damaging is called that which is joined with formal sin against commutative justice, or, as they say, which proceeds from theological fault. Thus, e.g., he who knowingly and willingly burns another's house unjustly commits formal damaging. Material damaging is that which in fact causes damage, but involuntarily and therefore without moral fault of the damager. E.g., he who fired a gun wishing to kill a hare and, wholly by chance and without any caution having been neglected, wounds a hidden man, has committed material damaging, but has not sinned formally against justice. This material damaging is indeed sometimes joined with so-called juridical fault, which is nothing other than the omission of that diligence which positive law requires for preventing damage.

Juridical fault is customarily subdivided by authors into broad, light, and very light. Broad juridical fault consists in the omission even of that diligence which ordinarily and moderately prudent and diligent men are accustomed to employ in their operations. Light juridical fault is the omission of diligence which more prudent and more diligent men are accustomed to employ. Very light juridical fault is the omission of diligence which only the most diligent and most careful persons are accustomed to employ in their actions. This threefold subdivision of juridical fault is not found expressed in modern civil codes, which are not accustomed to distinguish except between grave and light negligence.² Juridical fault can be present (although very rarely) without any theological fault; then it is called merely juridical fault, and the damaging caused from it is purely material. Ordinarily, however, juridical fault is joined with theological fault more or less grave, because in reality it is a sin not to employ in our actions that diligence which positive law justly requires.

² Gross and slight negligence. The German Civil Code § 276 establishes: "He acts negligently who leaves out of account the care required in dealings," and § 827: "Whoever, in a state of unconsciousness, or in a state of morbid disturbance of mental activity excluding free determination of the will, causes damage to another, is not responsible for the damage." The Swiss Code has similar things, a. 41 sqq.; the French Code, a. 1382/3; the Italian Code, a. 1153; the Spanish Code, a. 1902 sqq., following in this matter the old Roman law. (Lex Aquilia.)

93. Principle 1. Unjust damaging is not only from its kind a grave sin, but also induces the obligation of restitution, if this threefold condition is present, namely, if it is truly, efficaciously, and formally unjust, or, as others say, if it is unjust, effective of damage, and theologically culpable.

It is explained and proved. That (formal) damaging is from its kind a mortal sin is plain of itself. For it injures virtues obliging gravely, namely charity and justice. But in order that from damaging there truly arise an obligation of restitution, three conditions are required:

94. 1. The damaging action must be truly unjust, i.e., it must injure commutative justice or the strict right of another, whether it is a right in a thing or a right to a thing. Indeed a damaging action can be gravely sinful without inducing an obligation of restitution. E.g., he who from hatred does not save the burning house of an enemy, although he easily can, sins gravely against charity, but is not bound to restore, because the enemy cannot in justice demand that his house be saved by another private man. Therefore it is altogether required that the strict right of the neighbor be injured. Hence the following cases are easily solved:

Resolutions. a) He who by importunate prayers, persuasions, etc., induces a master not to give a stipulated salary to a servant is bound to restitution; for he has injured the servant's strict right to the stipulated salary.

b) He who by prayers, persuasions, etc., induces a rich man not to give alms to a determinate poor man is not bound to restitution. For the poor man (unless he is in extreme necessity) does not have a strict right to alms.

c) He who by detraction, calumny, force, fraud, etc., procured that a rich man not give alms to a determinate poor man is bound to restitution. For although the poor man does not have a strict right to alms, nevertheless he has a strict right not to be impeded from receiving alms by unjust means, such as detraction and calumny. The same holds of him who by fraud, e.g., by sending in a false hope of health, turns a dying man away from making a testament in favor of a third party.

d) He who by detraction, calumny, or other illicit means impedes someone from the obtaining of some good, the accepting or conferring of which is objectively bad, indeed sins on account of the illicit means employed, but is not bound to restitution. In this case the presence of sin is plain of itself, because "a good end does not justify bad means." That there does not exist an obligation of restitution can be perceived from this, that the man impeded from the obtaining of an illicit good indeed had a strict right that detraction, calumny, or other sinful means not be used against him, but he had absolutely no right to the obtaining of the good itself.³ E.g., he who by fraud and a calumnious lie turns a young man away from giving money to a prostitute is not bound to restitution toward the prostitute. For the prostitute, although she has a right that a calumnious lie not be said about her, nevertheless has absolutely no right to receiving money from the lustful young man (at least before fornication has taken place).

³ Cf. Billuart, De iust. diss. 8, a. 12.

95. 2. The damaging action must be efficaciously unjust. Or in other words, the action must be the true cause per se of the damage inflicted or actually following. The reason is that only he who is the true cause or author of that damage, whether by himself or through others induced to this, can be obligated to repair the damage. Hence a strict obligation of restitution does not arise if the action was a) good or indifferent in itself, although the intention of the agent was very bad; b) only a cause per accidens of the damage; c) an occasion of the damage; d) a condition without which not of the damage.

Resolutions. a) A judge condemning an accused man from hatred almost diabolical, but according to just laws, sins gravely against charity on account of his hatred; but because his action is not unjust, he is not bound to restitution.

b) An innkeeper offering wine to a drunken man, foreseeing that in drunkenness the man is going to have great damage, is not bound to repair this damage, because his action was not the cause per se, but only the cause per accidens, of that damage. If, however, the innkeeper directly intends this damage and therefore offers wine so that the man constituted in drunkenness may suffer that damage, then he truly acts unjustly and his action is the cause per se (at least instrumental) of the damage, and therefore he ought to repair the damage caused.

c) A theft committed by Peter gave occasion for suspicion of the crime to fall upon Paul, who from this suffered grave damage. Peter is not bound to restitution, because his theft is not the cause but the occasion of that suspicion. If, however, Peter deliberately directed suspicion of the theft upon Paul, by using, e.g., his garments or tools in the execution of the theft, by hiding the matter of the theft in Paul's room, etc., then he acted unjustly and is bound to restitution. For Paul has a strict right that no one deliberately cause him a wicked suspicion.⁴ A wicked example inducing to damaging can also be held as an occasion and not as a true cause of damage.⁵

d) If someone returns a sword to a man prepared to kill another, he is indeed a condition without which not of this killing, but nevertheless he is not bound to restitution on account of the killing done, because he is not the cause per se of the damage inflicted.

⁴ Cf. St. Alphonsus, Theol. mor. l. 3, n. 635.

⁵ Cf. below n. 103.

96. 3. The damaging action must be formally unjust, or proceed from true theological fault.⁶ The reason is obvious; for without true theological fault or sin admitted, the damaging action is not voluntary. Now an involuntary action imports no morality and no obligation. Moreover, the obligation of restitution arises either from another's thing accepted or from an unjust action. But neither has another's thing been accepted, because the damager has not been made richer, as is supposed, nor was his action unjust, since through defect of will it had no morality. Finally, restitution for the damager is a certain penalty. But penalty supposes fault. Therefore where there is no moral fault, there also is no moral obligation of restitution. From what has been said it appears that there is no obligation of restitution in the following cases:

Resolutions. a) A physician who, from inculpable error, gave a harmful remedy to a sick person neither sinned nor is bound to restitution.

b) A confessor who, from inculpable error, freed a penitent from the obligation of restitution neither sinned nor is bound to reparation of the damage.

c) A man who wholly by chance, without any negligence, kills another neither sinned nor is obligated to reparation of the material damage perhaps inflicted.

⁶ Hence Jhering said very truly: "Not the damage obliges to compensation for damage, but fault." So also the Lex Aquilia. D. lib. 9, tit. 2.

97. On The Gravity Of The Obligation Of Restoring. From grave theological fault there arises a grave obligation of restitution, if, however, the damaging was truly and efficaciously unjust. This is plain from what has been said. But if the theological fault was light, one must first see from what cause it is light: whether from smallness of matter, or from another cause.

If the fault was light from smallness of matter, i.e., from small damage inflicted, there is a light obligation of restitution. Thus all authors teach, at least modern authors. The reason is that all violated commutative justice demands reparation, which indeed must be measured both on the part of the matter and on the part of the fault. Now in the present case there is light matter and light fault. Therefore there is also a light obligation of restitution.

But if with light fault⁷ grave damage has been caused, authors do not agree concerning the obligation of making restitution. There are four opinions:

1. He who from light fault caused grave damage is bound under mortal sin to reparation of the whole damage. Thus Henry of St. Ignatius⁸ and a few others.

2. He is bound to reparation of the whole damage under light sin. Thus Vasquez⁹ and in some way Billuart¹⁰ and Waffelaert.¹¹

3. He is bound to partial reparation of the damage, according to the condition of the fault and according to the prudent judgment of a man. Thus Bonacina¹² and Laymann.¹³

4. He is bound to nothing. Thus St. Alphonsus,¹⁴ Lugo,¹⁵ Lehmkuhl,¹⁶ Noldin,¹⁷ Gopfert,¹⁸ and several others.

The first opinion is obsolete. Theoretically speaking, the second opinion seems better to us, because the obligation of restitution must be measured chiefly from the fault of the agent, while nevertheless connoting the damage really caused. Hence where there is no moral fault, there is no moral obligation of restitution; where there is grave fault, there also arises a grave obligation (provided that the damage caused is grave). Therefore it seems reasonable that, where grave damage has been caused with light fault, there should be a light obligation of repairing this damage. But the argument which is usually brought forward for the fourth opinion is by no means convincing. They say: Neither a grave nor a light obligation of restitution arises from light fault. Therefore no obligation exists. Not grave, because a grave obligation has no proportion with light fault; not light, because a light obligation has no proportion with a grave thing. But the response is: passing over the first part of the argumentation, concerning which no difficulty exists here, the other part is little probative. Cannot a light obligation be about grave matter? Can someone not oblige himself by vow under light sin to a grave thing, e.g., to a distant pilgrimage? Can a legislator not command a grave thing under light obligation? Then this fourth opinion equally conflicts with the common sense of men and with civil legislation. Here is a case: Today Peter with light fault burns Paul's cheap garment. He is bound under light sin to restitution of this light matter, which indeed even the authors of the fourth opinion teach rather commonly. Tomorrow Peter, with equal light fault, burns Paul's whole house. Now he is bound to nothing according to the fourth opinion, because a light obligation cannot turn upon so great a matter! Another case: Peter, a very rich man, with light theological fault sets fire to the house of Paul, who is thus reduced to extreme poverty. According to the fourth opinion Peter can tranquilly enjoy his riches and ought to pay nothing; but Paul can beg and grieve over his burned house, yet he has no right against Peter! How great cruelty toward an innocent man, and how great laxity toward a culpable man! Do these things correspond to the sound estimation of men? The German Civil Code¹⁹ also establishes that, according to equity, damage inflicted without any fault must be compensated, provided, however, that the one compensating is not thereby deprived of goods necessary for his state.

From all things said thus far it appears sufficiently that the fourth opinion is not theoretically true. Hence even its followers limit it to the case in which the lightness of fault has arisen from imperfection of the act.²⁰

Resolutions. In practice, in individual cases, the circumstances both of the agent and of the damage inflicted must be carefully attended to, as is plain from the following examples:

a) He who from invincible error thinks that he is unjustly destroying the cheap glass of an enemy, but in reality destroys most precious crystal, is bound under light sin to repair the whole damage (if, however, he can). But he who from invincible error thinks that he is unjustly destroying a thing of grave value, e.g., 100 francs, which nevertheless in reality costs 1000 francs, more probably is bound to restore the value of 1000 francs. The reason is that in the first case there is light sin and therefore a light obligation of repairing the whole damage; but in the second case there is grave sin and therefore a grave obligation of repairing the whole damage actually caused. St. Alphonsus,²¹ however, thinks that the opposite opinion is sufficiently probable.

b) He who from a certain light negligence causes another grave damage wholly unforeseen can be treated more mildly. For in daily life it is morally impossible that slight negligences of this kind be avoided. But if someone could and should have foreseen the grave damage of the neighbor and nevertheless is negligent, he sins gravely and therefore is obligated to restitution of the damage. E.g., a physician who foresees great damage to a sick person and nevertheless is truly negligent, sins gravely and is bound to restitution. But if this negligence is very small, the physician is bound to nothing, because it is too difficult for a physician daily to employ perfect diligence in all cases.

c) He who from a second-first movement of anger gravely wounds or kills another indeed cannot ordinarily be obligated in practice to repairing the whole damage (because then even civil tribunals admit attenuating circumstances), but nevertheless it does not seem to be equitable that absolutely no compensation be demanded. In this case the third opinion proposed above by Bonacina can well be applied.

d) He who committed several damagings which individually indeed are light, but joined together are grave, ought to restore under light sin if he inflicted the individual light damages upon different persons. The reason is that those individual damagings do not coalesce and in themselves are venial sins. But if he caused many light damages to the same person, he seems to be bound to restitution in the same way as if he had committed just as many small thefts against this person, whose right is injured in the same way by theft as by damaging. When small thefts coalesce into grave matter has been said above, n. 82 sqq.

Billuart excellently notes concerning this whole controversy: "For the rest, whatever there may be concerning the speculation of this question, the authors of whatever opinion commonly observe that it rarely happens in practice that grave damage is caused from venial fault; because, although venial inconsideration is frequent in subreptitious thoughts and internal movements of the soul, which often, easily, and subtly arise, and indeed about objects conforming to natural inclination, nevertheless it rarely happens in external works of grave moment, because ordinarily they at once thrust their danger upon the mind and more strongly excite it to some consideration, or at least to confused cognition of the danger. Hence, unless it is certainly established that the inadvertence was venial, in practice it is to be held as mortal, namely, conformable to the damage, and the obligation of restoring under mortal sin is to be inculcated."²² Concina has similar things, who judges this controversy very moderately and not rigidly.²³

⁷ This light fault can occur in two ways: 1. from error or erroneous conscience, e.g., someone wants to destroy another's thing which he thinks is light, but which in reality is of great value; 2. from imperfection of the act, e.g., someone from slight but culpable inconsideration causes grave damage.

⁸ Ethica amoris l. 9, c. 116.

⁹ De restit. c. 2, § 2, dub. 2, n. 2.

¹⁰ De iure et iust. diss. 8, a. 5.

¹¹ Tract. de iust. II, n. 266.

¹² De restit. disp. I, q. 1, n. 56.

¹³ Theol. mor. lib. 3, tract. 3, p. 1, c. 6, n. 4.

¹⁴ Theol. mor. l. 3, n. 552.

¹⁵ De iust. et iure, disp. 8, n. 57 sqq.

¹⁶ Theol. mor. I, n. 1153.

¹⁷ De praeceptis n. 435.

¹⁸ Moraltheol. II, 161.

¹⁹ § 829.

²⁰ Cf. Noldin (De praeceptis n. 435) saying: "He who inflicted grave damage with fault (from imperfection of the act) that is light, according to the opinion practically to be followed is bound to nothing." But previously in n. 434 he said that the opinion which exempts from restitution him who inflicted grave damage with light fault, which was a perfectly human act, is indeed extrinsically probable, but is plainly destitute of internal probability.

²¹ Theol. mor. l. 3, n. 615.

²² De iure et iust. diss. 8, a. 5.

²³ De iust. et iure lib. 2; diss. 2, c. 5, n. 7.

98. Principle 2. From material damaging there does not arise an obligation of restitution except in two cases, namely 1) after the sentence of a judge; 2) if it has been freely stipulated so.

It is explained and proved. 1. Material damaging is caused from no moral fault, and therefore it cannot impose in conscience an obligation of restitution, since this is a penalty for fault committed. Nevertheless, laws are just which decree that, even after material damaging with juridical fault, there is an obligation of repairing the damage. For those laws favor all citizens equally; they render individual men more watchful, lest they inflict any damage upon others, and they forestall many cavillations and frauds. But these laws do not oblige in conscience except after the sentence of a judge, because restitution after damaging is a penalty; but generally all positive laws requiring some hard penalty, which consists in an action to be placed, do not oblige except after the condemnatory sentence of a judge.²⁴

2. If a special explicit contract has preceded, obliging the other contracting party to restitution in any case whatever of damaging, such a contract is licit, and therefore even without theological fault the damage caused must be repaired. Such contracts are often quasi-insurances. E.g., the possessor of a railway ought to restore the price of goods which were destroyed during transport, in whatever way finally this destruction occurred. But if the contract entered into is not so explicit, but rather implicit, e.g., in loan for use, in deposit, in the undertaking of some office, one must distinguish:

a) If the contract is for the sole utility of the recipient, as in loan for use, then the damager is bound to restitution even from light juridical fault, to which nevertheless in practice at least light theological fault is always joined. That from loan for use an obligation arises for the damager even when lightly culpable, Gregory IX already determined: "When someone has accepted a loan for use only for his own sake, he is held even for very slight fault, although a fortuitous case ... ought not be imputed to him."²⁵ For natural equity seems to demand that a thing lent to another be guarded with the greatest diligence. Hence, e.g., if someone loses a book lent for use even with light fault, he is bound to restore its price.

b) If the contract yields to the sole utility of the giver, the recipient is not held concerning damage except from broad juridical fault.²⁶ The reason is that in those contracts the recipient has nothing except a burden, and therefore it would be inequitable if, besides the burden of custody, he were still held to restitution from very slight fault. This case often occurs in a contract of deposit. Civil laws are accustomed to establish to what extent he who receives some deposit is held to repair all damages, e.g., a railway or innkeeper receiving the luggage of travelers. Those statutes seem to oblige in conscience even before the sentence of a judge.

c) If the contract yields to the utility of both contracting parties, or if only an implicit contract has intervened by reason of an office undertaken, the contracting party is held to repair damage arisen from broad juridical fault. The reason is that whenever a contract, whether explicit or implicit, has been entered into, the contracting party takes upon himself the burden of faithfully observing all clauses of the contract. Hence, e.g., he who, for a determinate price, has borrowed a horse from another, is bound to repair the damage which the horse has suffered from the broad fault of the borrower. A physician or confessor is bound to repair damages which have arisen from their broad fault. In practice this broad fault always includes theological fault more or less grave. Hence, e.g., a confessor who falsely freed a penitent from the obligation of restitution is bound according to his powers to repair the damage inflicted, because by force of the office undertaken he ought to judge rightly concerning the obligations of the penitent. A longer discussion concerning this matter will return below in the tract on penance.

²⁴ Cf. above, concerning laws, I, n. 212.

²⁵ Cap. unicam, X 3, 15.

²⁶ Cf. S. theol. 2, 2, q. 62, a. 6.

99. Corollaries. From the two principles posited and explained, the following are still drawn out:

1. He who culpably placed a cause from which he foresaw that a determinate damage was going to follow is bound to repair this damage actually following, although he afterward tried to impede the cause. The reason is that by placing such a cause he damaged truly, formally, and efficaciously. But he who without fault placed a cause from which damage to the neighbor is going to follow is bound to prevent the effects of the cause insofar as possible. But if he does not do this, he implicitly approves the cause placed, becomes theologically culpable, and is held to reparation of the damage going to follow. Hence, e.g., a physician who inadvertently administered the wrong medicine ought, according to his powers, to prevent the effects; otherwise he is bound to reparation of the damage.²⁷

2. He who, wishing to damage Peter, by error damages Paul, nevertheless is bound to restitution. The reason is that his action is truly, efficaciously, and formally unjust. Hence the opposite opinion of certain authors²⁸ must be rejected. The case which St. Alphonsus proposes is celebrated.²⁹ Someone wishes to set fire to the house of Titius, his enemy; he goes to the house which he thinks is Titius's, which nevertheless in reality is Caius's, and he sets fire to it. According to the opinion of some authors, the incendiary is held to no reparation, at least if he did not intend, even confusedly, to burn also the house of Caius. For, they say, formal injury is not present in that case, because the incendiary in no way wished to inflict damage upon Caius, who perhaps is his friend. With merit very many modern authors shrink from this opinion, since it conflicts too much with men's moral sense and has caused no small ill-will toward casuistic theology. For that incendiary intends and formally causes injury to the neighbor; but it is wholly per accidens that he errs concerning the person damaged.

Similarly, a like opinion proposed by Gury³⁰ is to be rejected; he thinks that there is no obligation of restitution if someone, moved by a spirit of vengeance, fired a bullet at a she-goat of his enemy, but instead of the unharmed she-goat struck and killed a cow of the same enemy. For although that damager did not wish by his act to kill this cow, nevertheless he wished to inflict grave damage upon his enemy. Therefore there is grave theological fault and grave damage caused; and therefore there is also a grave obligation of restitution.

3. He who has injured only distributive justice is not bound to restitution. But very often together with distributive justice commutative justice also is injured, and then certainly reparation of the damage must be made. An unjust distributor of public offices and duties is bound to restitution toward the community if he has chosen ministers altogether inept, but not if indeed he passed over the more worthy yet appointed worthy and suitable persons. Sometimes also he ought to repair the damage caused to the more worthy persons passed over, namely if a) candidates for some office are called together by way of onerous contract; b) if the supreme superior of the society has obliged the lower distributors, and indeed from commutative justice, to choose the best candidates. In practice there will rarely be an evident and certain obligation of reparation, if it is a question of lay offices and duties. But it is otherwise if it is a question of the conferring of ecclesiastical benefices. Concerning these the following things are commonly taught by authors:

a) It is always a grave sin knowingly to confer some ecclesiastical benefice upon an unworthy candidate.

b) If, after a more worthy candidate has been passed over, a benefice is conferred upon one less worthy, there is still sin; indeed, if it is a question of a benefice with care of souls, it is grave sin.³¹

c) When from the election of an unworthy or less worthy candidate grave damage comes to the benefice or community, the unjust collator is bound to repair this damage; on the other hand, he is bound to nothing from justice toward worthy or more worthy candidates passed over, because they do not yet have a strict right to the benefice proposed. The single exception is if, for obtaining a determinate vacant benefice, the so-called "concursus" has been made, as is customarily done in several regions for parishes and certain canonries. For then, according to the more probable and much more common opinion, commutative justice is injured also toward the more worthy candidate unjustly passed over. The reason is that the calling to a special concursus is a quasi-contract, according to which the collator promises and ought to confer the benefice upon the more worthy. Hence in the Council of Trent³² it was decreed that one unjustly passed over has the right of appealing, by which he can vindicate for himself the benefice unjustly denied to him. And in reality such a candidate unjustly passed over often suffers no small material damage, because he does not receive the revenues of the benefice iniquitously denied to him. There are nevertheless several authors (Dominic Soto,³³ Navarrus,³⁴ Martin Ledesma³⁵) who deny the obligation of restitution. Concerning these two opinions St. Alphonsus³⁶ writes: "I do not dare to depart from the first opinion, common and much more probable. But neither do I dare to say that this second is improbable; because in reality it does not seem to be established that between the bishop and the competitors that pact intervenes which binds rigorously from commutative justice." Since in many regions there is no longer a properly so-called and special concursus for obtaining benefices, this question is not so practical. But if it is a question of a general concursus for an indeterminate and not-yet-vacant benefice or office, the superior does not injure the strict right of the candidates if, for some benefice or office subsequently becoming vacant, after passing over the more worthy, he chooses one less indeed but truly worthy. The reason is that the more worthy candidate does not have a strict right to some determinate benefice.

²⁷ Cf. St. Alphonsus, Theol. mor. l. 3, n. 564.

²⁸ Lugo, De iust. et iure disp. 17, n. 78 or rather disp. 18, n. 86; Lacroix, De consc. l. 3, n. 200; St. Alphonsus, l. c. n. 629; Sporer, De iust. tr. 4, c. 2, n. 139; D'Annibale, Summula II, n. 232.

²⁹ L. c.

³⁰ Comp. theol. mor. I, 672.

³¹ Cf. Council of Trent, sess. 24, c. 1 de reform.; prop. 47 condemned by Innocent XI (Denz. n. 1197); Code of Canon Law c. 459, § 1.

³² Sess. 24, c. 1 de reform.

³³ De iust. et iure l. 4, q. 6, a. 3 ad 6, posterior conclusion.

³⁴ Man. c. 17, n. 24.

³⁵ In IV sent. 2, 4, q. 18, a. 2, dub. 9, concl. 2.

³⁶ Theol. mor. l. 4, n. 109; cf. Elenchum quaest. reform. q. 47.

St. Alphonsus, III, n. 582-588; ed. G., II, p. 73 seqq.; H. Ap., X, n. 60; Aertnys, l. III, n. 341; Lehmkuhl, I, n. 1160; Genicot, I, n. 514; Noldin, II, n. 430; Tanquerey, II, n. 587; Berardi, Theol. mor., III, n. 305.

919. Notion. Unjust damaging, in the strict sense, is an act by which, through formal injury, damage is inflicted upon one's neighbor, without any advantage of the one inflicting (cf. n. 948 seqq.).

General Principles. I. Unjust damaging is a sin from its genus grave. The reason is clear. Hence, no otherwise than theft, it admits smallness of matter that excuses from grave sin (cf. n. 904).

II. Formal damaging does not extend more broadly than foresight, at least confused, of the damage inflicted itself. The reason is clear from the things said in n. 724.

This species of injury will bring with itself very many things to be investigated and weighed in Dissertation III, where we shall treat of restitution. - In this place it will be enough to have discussed three cases in which injury is accustomed to appear doubtful, namely: 1. concerning a thing abandoned or put away in danger; - 2. concerning privation of a hoped-for thing, or concerning one impeding the obtaining of a just good; - 3. concerning unjust distribution of offices.

920. QUAER. 1. Whether you ought to prefer another's endangered thing, deposited with you or in any way committed to you, to your own thing, so that you are held concerning the damage if you have not preferred it?

Resp. Dist.: the contract or act by force of which you have another's thing either yields to your utility alone, or to the utility of the other alone, or to the utility of both. - If the first, for example if you have received the thing by commodatum, i.e. so that you may use it, you must prefer it to your own; unless yours is more precious, but in this case you are held to make the owner of the other thing unharmed, because the thing perished for your favor alone. - If the second, for example if you have received the thing by deposit, it must be subdistinguished: a) if the other thing is far more precious, you must preserve it; nevertheless, you can demand compensation of the whole damage that you have suffered in preserving it. - b) If your thing is almost equally precious, according to some you are not held to prefer another's thing to your own, since you retain this for the utility of the other alone; according to others, you are obligated to prefer the thing of another, since with respect to that thing the reason of justice intervenes, but with respect to your own, the reason of charity alone. - If the third, for example if as a broker you have been hired at a price to sell another's thing, there are those who think that, other things being equal, you can prefer your own thing; because charity does not oblige that in equal necessity you prefer another's thing to your own; but others judge that some compensation is owed to the other party, which is more equitable

seems more equitable. Here the Codes of commerce are to be consulted (III, 752; Lessius, l. 2, c. 7, n. 27).

QUAER. 2. Whether he is guilty of unjust damage who again commits another's thing, which he has withdrawn from danger, to the same danger, in which it afterward perishes?

Resp. Some, very probably, affirm, because that better condition which another's thing had obtained has become a certain quasi-accession for the advantage of the owner. Others, no less probably, and perhaps more probably, deny, whenever the avoidance of one's own damage requires that the thing be put back in its own place; for thus no injury is done, because no one is held to preserve the thing for the owner with his own damage.

Therefore, if you have taken away another's thing found in the road, and afterward you know that you will suffer damage if you retain it, you can rightly put it back in the same place and permit another to carry it away, although by doing this you put the thing into a worse state; for then the taking by the thief occurs from his own malice, and your cooperation is only permissive of another's detriment, which you are not held to avoid with your own damage (III, 569).

STATE OF THE QUESTION. It is asked whether he is an unjust damager who impedes another from obtaining a just good. For a man can be damaged not only in the goods which he actually possesses, but also in those which he hopes for, such as, for example, spiritual goods, whether supernatural or natural, and temporal goods of a benefice, alms, a legacy, etc.

NECESSARY DISTINCTIONS. 1. These goods which one's neighbor hopes for are often owed to him from justice, because concerning them he possesses a right in a thing or a right to a thing; sometimes also they depend upon the merely free will of those conferring them.

2. One's neighbor can be impeded, lest he obtain hoped-for goods, in many ways: a) directly or indirectly, according as an impediment is placed with the intention or with the mere foresight of inflicting damage; b) efficaciously or not efficaciously, according as the action of impeding obtains in itself a greater or lesser force; c) by just or unjust means, according as the means employed in themselves tend against something to which he has a right; for example, if someone impedes his neighbor by fraud, most importunate prayers, calumny, or force, he uses unjust means, because one's neighbor has a right to liberty in acting and to the preservation of reputation. But if someone has recourse to persuasion, counsel, or non-importunate prayers so that his neighbor may be turned away from obtaining the hoped-for good, there can be no question of injustice, since neither the liberty of the giver in willing and acting nor the reputation of the one aspiring to the benefice is injured.

Note. Those means must be directed against the neighbor; but if they are directed against the benevolent giver of the hoped-for good, then they will be formally unjust toward the one hoping for the benefit only if they directly redound to his damage; for example, if the benefactor is struck with fear, lest he ever confer a benefit on anyone.

921. PRINCIPLES. I. To impede another efficaciously, even by non-violent means, from obtaining a good owed to him from justice is unjust damaging, whether it is done directly or indirectly, without a just cause. The reason: in this case it is verified that your action is the true cause of the damage inflicted on your neighbor. See what will be said in nn. 949 and 979 concerning an effectively unjust action and concerning unjust counsel.

From these things conclude: If someone without cause moves a father by prayers to this, that he deprive his son of a due inheritance, he is the author of the damage which the son suffers. - Generally, in whatever way truly efficacious impediments are set against the strict rights of a third party, there is injustice, which obliges to restitution.

II. To impede one's neighbor efficaciously from obtaining a good to be conferred from free will will be unjust damaging only then, if it is done by unjust means. The reason is that, as regards goods of this sort, another does not have a right, since they are to be conferred freely.

We said 1. It will be unjust damaging. But the magnitude of the damage to be repaired here must not be measured from the magnitude of the goods which were expected, but rather from the hope itself which the neighbor had. Therefore in practice such a damager will always be bound to less.

2. Only then ... if it is done by unjust means. There will be no unjust damaging if someone acts from hatred or vengeance; there will be only a lesion of charity.

Conclude from what has been said: a) He is not held to restitution who, although he does this from hatred, without deceit or force moves a testator not to leave an inheritance to a friend; who dissuades a Bishop from conferring on someone a simple benefice, for which a competition is not used; who by lies impedes the treasury from obtaining a sentence favorable to itself for juridic fault (III, 583, 588). Cf. Lehmkuhl, Cas. Consc., nn. 690-694; Ami du Cl., 1903, p. 297.

b) But he is held to restitution who calumniates a poor person, lest he obtain alms; a servant, lest he be admitted to service, etc. He is held, even if he only foresaw these inconveniences, provided the privation of the hoped-for good is to be ascribed to his calumny.

c) He is held to restitution who suppressed another's open letters, or retained them so long until he himself or others anticipated the writer in obtaining, in his place, the good which he expected. The same must more probably be said of him who, although he delivered the letters in due time, used the knowledge which he had acquired from them, so that he might anticipate or impede the writer (III, 585). See what is to be said in n. 1188.

III. To impede someone from averting the damage of one's neighbor is unjust damaging if it is done by unjust means, or if he who is impeded has been deputed by office to avert the damage. The reason for the first is clear from the preceding principle. The reason for the second is that, from the fact that he must avert the damage by office, the neighbor has a strict right to this, that you not turn him away, even by persuasion, from fulfilling his office.

Note. Here it is always supposed that the means employed place an efficacious impediment (cf. n. 980).

It is asked. If someone impedes another, even by unjust means, from obtaining a good which cannot be accepted or conferred without sin, whether he must restore?

Resp. Negatively, provided the acceptance or conferral is sinful on the part of the thing, for example the donation is prodigal, the testamentary disposition is illicit. The reason is that, although there is sin in the fraud or calumny employed, nevertheless no new malice of injustice is joined to this by reason of the impediment placed, since the neighbor possesses neither a right to the good which he seeks, nor a right not to be impeded by any means whatever from obtaining this good. Cf. Lehmkuhl, I, 1162.

922. An unjust distributor of public offices injures principally distributive and legal justice, and subsequently commutative justice (cf. n. 400).

It is asked. Whether he who chooses an unworthy or less worthy person is held concerning the damage that follows?

1. With respect to the society: a) He who chooses an unworthy person is held concerning the damages which thence come upon the community and were foreseen. The reason is that, by force of a quasi-contract between himself and the society, and often by force of the stipend which he receives, there lies upon him an obligation from justice to procure the good of society, and consequently not to choose an unworthy person. - b) He who chooses a worthy person, while passing over a more worthy one, more probably is held to nothing toward society, even if perhaps he has sinned gravely. The reason is that the society is not judged to bind electors by so rigorous a title, namely by the title of strict justice, to choose the more worthy (III, 585; IV, 106).

2. With respect to those to be chosen: a) More probably he is held to nothing toward the worthy or more worthy person passed over, if no competition has been instituted. The reason is that he has violated no one's strict right. b) It must be said otherwise in the case of a competition, as is very commonly taught against some, whose opinion nevertheless St. Alphonsus does not dare to condemn as improbable (IV, 109; H. Ap., XIII, n. 37).

The reason for doubting is that public offices and benefices are instituted solely or principally for the common good; and therefore they are not conferred as prizes promised to those competing in a contest, which are instituted principally as rewards of merits. - A fuller discourse concerning these matters will be given in n. 2240. Cf. Noldin, II, 454.

948. An unjust damager is said to be one who injures another's right, or harms his neighbor in goods, without thence becoming richer of himself or directly.

PRINCIPLES. I. An unjust damager is held to restore an equivalent price, both of the thing damaged and of the other damages which have come from his action and were at least confusedly foreseen by him. The reason is that the injured owner must be made wholly unharmed, according to equality (cf. n. 931). Yet injury is to be estimated not from damage only, but also from the will of the agent (n. 724).

949. II. In order that a damaging action induce an obligation of restitution from the law of nature, a threefold condition is required, namely that the action be strictly, effectively, and formally unjust; and these three things are altogether certain. These are to be explained part by part (cf. Lugo, disp. 8).

Condition 1. It is required that the damaging action be strictly unjust, that is, that one's neighbor has been despoiled of some thing to which he has a strict right. The reason is that the obligation of restoring, as we have already often said, arises from the violation of commutative justice alone (III, 547).

It is explained: 1. The strict right which can be injured is either a right in a thing or a right to a thing, which supposes a legitimate title. You do not have a right to all things to which your neighbor, in conscience, is obligated either from charity or from religion, namely a vow.

2. He violates a strict right who takes away the thing of his neighbor, although he himself abuses it for sinning (see nevertheless n. 1020); indeed although he received it as remuneration, a pact concerning a shameful thing having preceded (n. 1036). Cf. Lehmkuhl, Cas. consc., n. 691.

3. He violates a strict right who inculpably indeed has placed an action harmful to another, but culpably does not impede it from proceeding; for example, if someone does not extinguish a fire applied by himself without fault to another's houses; or does not warn a buyer after he has noticed that he gave poison for a remedy (III, 564, 994; VI, 621). Therefore there is an obligation of restitution.

4. Nevertheless a damager is not held to restitution who had the right of placing an action harmful to another. For the Rule of Law, Law 151, de Reg. Jur., favors him: "No one does damage, except because he does that which he does not have the right to do." Thus a merchant is not unjust who sells at the lowest price, although he injures other merchants; nor a proprietor who turns waters from his own field into another course harmful to his neighbor, lest he himself suffer gravely; nor a smith who sells a sword to a homicide, lest he himself perish by death. - But otherwise, if actions of this kind are placed without a just cause (III, 584, 697). Similarly, the owner does not act unjustly who digs a pit on his own estate, although he intended that an enemy, whom he knows sometimes passes through there illicitly, should fall and break his leg. Lehmkuhl, Cas. consc., n. 672. Nevertheless charity requires that the enemy at least be warned in general.

5. He is also not held to restitution who has injured charity alone, for example if you were conveniently able to impede the burning of another's house and were unwilling; or religion alone, as if you neglected your vow; or piety, for example if you did not feed your needy parents; or legal justice, if, for example, you denied a crime as accused or witness, lest your own or another's goods be applied to the treasury; or distributive justice, if, for example, by distributing alms left by legacy to the poor, you neglected the poorer. And the same must be said of every debt which does not arise from commutative justice (III, 547, 583).

Condition 2. It is required that the damaging action be effectively unjust, that is, a true and efficacious cause of the damage. The reason is clear: for only the author of damage is held to repair it. Therefore it is required: a) that the damage has truly been inflicted; for damage merely willed, just as also that of which you indeed placed the cause, but which another impeded, for example in a fire made by you but extinguished by another, brings no obligation of restitution; b) that the damage has emanated from your action as from its proper cause; for there can be no obligation of restitution unless the cause of the damage is established, and the true influence of this cause into the damage (III, 562, 584; cf. II, 43, 45).

Hence: 1. It does not suffice for the obligation of restitution that injury without damage has intervened. Thus, he who committed adultery without the damaging of another is held to no restitution in conscience, although he can be compelled by a judge to make satisfaction for the injury (III, 556).

2. The occasional cause of damage does not suffice, because it is not an efficacious cause, but only the occasion of an efficacious cause, that is, at whose presence the principal cause acts. Hence, if by occasion of a theft or homicide perpetrated by you, another has been accused and condemned, you are not held to repair his damage. - And the same holds even if you foresaw this or even intended it, unless the circumstances of the action were such that they proximately and morally influenced the imputation against the third party, say if you killed clothed in the garments or arms of Paul (III, 635). - In this last case the guilty person is held from justice to denounce himself, or at least to turn suspicion away from the accused; otherwise he would be held from charity alone. - Hence also, if, by occasion of a violated sacramental seal, Peter has learned the author of a theft, so that through proofs and indications he can reclaim his good before the judge, he, Peter, although he sinned by listening to the thief's confession, is not the efficacious cause of the damage which comes upon the thief from the sentence of the judge. Linz. Quart. Schr., 1906, p. 829. Ami du Cl., 1905, p. 971, certainly otherwise. Cf. the things to be said in n. 1188.

3. A cause without which the effect would not occur does not of itself suffice; for example, if you did not return the sword, another would not be killed: from this you do not become the efficacious cause of the damage.

4. A remote and accidental cause does not suffice; for a cause of this sort does not of itself and directly influence the damage, but through some unforeseen and improbable accident; and therefore it cannot be called the efficacious cause of the damage (III, 632). Now damage is judged to follow by accident when for the most part it does not arise from the cause posited, or even could not arise from that alone without the concurrence of other causes.

5. Likewise he is not held to restitution, according to the more common and more probable opinion, who by his bad example has induced others to inflict damage. For bad example is not properly a cause positively influencing the damage, because of itself it does not tend to this, that it impel others to doing the same thing; but it is a mere occasion at whose presence others, of their own accord, take up the thought and counsel of inflicting damage. See the things said above under 2. - But it must be said otherwise if the example should put on the nature of counsel or mandate, for example if the leader of soldiers began to plunder (II, 44).

Note. a) According to grave authors, sometimes a cause which ordinarily influences damage by accident is considered as a cause causing damage of itself, if it is placed solely with the intention of harming. Causes of this sort would be, for example, to steal something small from a miser so that he may become sick; to place a snare in a forest so that an enemy, rarely passing through, perhaps may bring evil upon himself; to kindle a fire in a remote place so that, if perhaps a wind arises, the granaries of the enemy may be burned. - Nevertheless it is not to be denied that this theory concerning the efficacy of intention with respect to action does not please all, as we noted in n. 727. See Lehmkuhl, Cas. consc., n. 713.

b) Since attention should rather be paid to the action considered in itself, it follows that if someone culpably placed the cause of damage and afterward, led by repentance, tried to impede the damage, but in vain, he is nevertheless held to restitution. For retractation takes away fault before God and contumacy before the Church (n. 1264), but it does not change the natural influence of the action. - Except if it is a question of counsel, whose influence revocation takes away (n. 982). Cf. St. Alph., III, 559; VII, 40.

Condition 3. It is required that the damaging action be formally unjust, that is, theologically culpable.

For a twofold fault is distinguished, namely theological and juridic.

Theological fault is the omission of ordinary diligence which the matter demands and which is customarily employed by the timorous in their own office; and indeed a voluntary omission, whether in itself or in its cause. According to the degree of the damaging, it constitutes sin, whether grave or light.

Juridic fault is the omission of diligence required by positive Law or by the nature of the contract for forestalling damages, although in the omission no theological fault intervenes. This omission is called lata fault if the diligence which men commonly are accustomed to employ in a similar business is omitted; light, if the diligence which diligent men, as a good father of a family, employ is omitted; very light, if the diligence which the most diligent put forth is omitted (III, 549). - Juridic fault becomes theological fault only then when due diligence is advertently omitted; because, when there is no advertence, not even in the cause or in a confused way,

there is lacking consent of the will into the damage, or the mind of harming. - Very often broad juridic fault has theological fault as its companion.

Therefore the sense of the third condition here is: In order that there be an obligation of restitution, there is required, on the part of the one causing damage, broad juridic fault placed advertently.

It is proved: "In order that conscience remain obligated, it is necessary that the delict have been perpetrated in conscience" (H. Ap., X, 39). Thus from natural Law.

Hence there is no obligation of restitution, at least before the sentence of a judge: a) If you killed an enemy whom, in killing, you thought to be a wild beast, even if you rejoice after the fact. - b) If a thief, by occasion of the theft, indeed efficaciously, but beyond all advertence, inflicted a new damage, for example because by overturning a lamp he excited a great fire. - c) If a maidservant from merely juridic fault breaks the crystal vessels of the owner. - d) If an industrial man omitted in his workshop the slight precautions prescribed by law, while ordering all else prudently, and a great misfortune occurred (Lehmkuhl, Cas. consc., n. 665). - Some authors indeed judge that there is an obligation of restitution if someone, in doubt whether damage may come upon his neighbor from his action, omits diligence required only by law. Yet this obligation is not established (III, 551).

Note. 1. From merely juridic fault there sometimes arises an obligation of restitution; and this can happen under a twofold head: a) By force of positive law, after the sentence of a judge. Thus a judge can justly condemn you to the reparation of damage truly inflicted by your animals or by boys committed to you, without theological fault;¹ and such a sentence obliges in conscience from legal justice (cf. n. 192). Yet the law itself does not oblige before the sentence, unless theological fault was present, as is commonly taught (cf. n. 933). b) By force of an express convention in contracts, or in fulfilling offices; for you can often justly obligate yourself even concerning a fortuitous event, as will be said in its place (cf. n. 1162).

We said by force of an express convention, in contracts; for Lessius, Lugo, and others teach very probably that it is not equitable to oblige someone in conscience to a grave penalty, without grave fault of his, whenever it is not established that he wished to subject himself to juridic fault alone (III, 554). - The same reason holds for quasi-contracts, or fulfilling offices. Wherefore no one obliges physicians, advocates, confessors, and theologians to restitution from juridic fault alone; for if the matter were otherwise, no upright and timorous man would wish to discharge these offices, which would fall to the damage of the republic (III, 555). See nevertheless what is to be said in n. 974.

2. From venial theological fault, sometimes, although grave damage is truly present, there arises no obligation of restitution: if namely the theological fault is venial by reason of inadvertence or indeliberation. Thus the more common and more probable opinion. An obligation of restitution under grave sin is not induced, because such an obligation does not have proportion with light fault; not under light sin, because a light obligation does not have proportion with grave matter; so much the more because fault imperfectly deliberated cannot induce a perfect obligation, just as in contracts and vows an obligation does not arise from consent not fully deliberated.²

3. Finally, all know that theological fault which is venial by reason of the damaging obliges to restitution under light sin (cf. n. 927).

It is added, 4. that these three things be altogether certain. Doubts concerning a damaging action can be moved: a) before the fact; concerning these antecedent doubts we are not speaking. All know that an action is licit to no one concerning which one antecedently and positively doubts whether it is unjust or not (cf. the things said in n. 81). b) After the fact, that is, subsequently to the damaging action already placed. But the object of doubt in the case can be either the existence of the damage, or the efficacy of the action, or its injustice taken objectively, or the theological culpability of the agent; and we say: as long as these doubts have not passed into certitude, there is no obligation of restitution. The reason is that, where it is a question of goods of fortune, no one ought to be deprived of his certain right unless it is established that the right has been lost (nn. 44, 850). Compare St. Alph., III, 562, 658; Conf. dir., X, 20.

Yet a twofold exception must be admitted: 1. If several have acted by common counsel, and afterward a doubt arises in what degree each concurred. 2. If someone inflicting damage notices that, by his action, he is the cause why the author of certain damage becomes uncertain. Cf. n. 963, 2.

950. Special question: On error in damaging.

In the matter of damaging, there can be a twofold invincible error: one concerning the object, the other concerning the person.

I. ERROR CONCERNING THE OBJECT. If someone thinks from invincible error that the damage inflicted by him is much less than it really is, he is probably not held to restoring except in proportion to the known damage. The reason: that damage which is not known, at least in a confused way, is not judged willed.

Thus, therefore, he who throws into the sea another's gem worth 100 aurei, thinking it to be worth only 10, must restore only 10 aurei (III, 613). See nevertheless the note to be placed below.

II. ERROR CONCERNING THE PERSON. If someone, intending to harm one person with any other excluded, harms another by invincible error, he probably cannot be obligated to restitution in the internal forum before the sentence of a judge. The reason is that it is not enough that the damaging action be unjust, but it is required that it be formally injurious toward the one damaged; and therefore error concerning the person is a substantial error.

Therefore if someone, wishing to kill Caius, kills Titius; intending to burn the house of an enemy, burns the house of a friend, etc., he will not be constrained to restitution. Thus St. Alphonsus (III, 628, 629), Lugo, Croix, and others.

Another probable opinion is given concerning this question. Besides Bonacina and Haunold, recent authors defend it, such as Lehmkuhl, Vermeersch, Noldin, Tanquerey, Schindler, Pruner. They affirm that in the case there is an obligation of restitution, because, they say, that action is unjust, an efficacious cause of damage, and theologically culpable, and error concerning the person is only accidental. These arguments are indeed not slight; nevertheless the reasoning of our holy Doctor is not to be despised, which even the adversaries concede; hence the possessor is to be favored.

Note. Yet in each mode of erring there is an obligation of restitution: a) If the damager was actually so disposed in soul that, even if he had known, nevertheless he would have inflicted the damage; because then ignorance was not the cause of the damaging. b) If he has been condemned by a judge; because in doubt one must stand for the judge (III, l. c.). Cf. Genicot, I, 522; Linz. Quart. Schr., 1905, p. 890; Ami du Cl., 1905, p. 984.

744. • An unjust damager is called one who injures another's right and harms the neighbor in his goods, without thereby of itself becoming richer.

A twofold fault is distinguished by which damage can be inflicted, namely theological fault and juridical fault. - Theological fault is that which includes an offense of God, that is, formal sin, whether mortal or venial. - But juridical fault is the damaging omission of diligence prescribed by law, whether this is a formal sin or not.¹

But juridical fault, from the common interpretation of Roman Law, is either gross, or slight, or very slight. Gross fault is the omission of diligence which men commonly are accustomed to employ in similar affairs, as if someone, leaving his workshop for a longer time, leaves the door and chests open, and anyone can easily carry away money or merchandise. Slight fault is the omission of diligence which more prudent and more diligent men are accustomed to employ; as if the same man, going away a little, neglects to carry with him the keys of the chest, which it is not at all likely that another, in his absence, will seize for stealing. Very slight fault is the omission of diligence which is usually employed only by the most prudent and most diligent; as if the guard of a house, who when about to go to bed bolts all the doors, neglects to search the individual places, lest perhaps a thief lie hidden.

745. Principles. - I. An unjust damager is bound to restore 1° the whole equivalent of the thing damaged; thus, for example, if someone culpably burns another's house, he must repay its entire price to the owner; 2° the whole equivalent of the damages foreseen besides the damaging of the thing, if any have come from it. Hence, for example, if a craftsman is compelled to omit his accustomed work for some time because you destroyed the instrument necessary to him, and you foresaw this, you are bound to compensate him not only concerning the value of the instrument, but also concerning the profit ceasing.

The reason for this principle is clear from what was said n. 587 and 713. For the injured owner must be made wholly harmless. But for this it is not enough if the damager pays to him the intrinsic price for the thing, when the other has suffered other detriments from the privation of his thing, since he would not recover everything which he lost from the unjust damaging. Nor does it stand in the way that no advantage came to the damager from the damage; for the whole reason of restitution must be sought not from utility perceived concerning another's thing, but from damage inflicted.

746. • II. That a damaging action induce an obligation of restitution, by natural right a threefold condition is required, namely that it be 1° unjust, 2° the efficacious cause of damage and indeed certainly efficacious, 3° theologically culpable.

1° Unjust. For the obligation of restitution necessarily supposes the strict right of another violated. But strict right cannot be violated except through an unjust action, or one opposed to commutative justice, according to what was said above n. 587, etc.

2° The efficacious cause of damage, namely 1° that the action per se influence the damage, so that this is judged truly to follow from it; 2° that it can be imputed to such an agent. The reason for each is clear. For an action can be imputed to no one unless it is his own; nor can the detriment of an action be ascribed to anyone unless his action was the true and efficacious cause of the detriment, physically or morally.

But this happens when an action is placed which from its own nature or from the circumstances has a morally certain connection with damage. Hence 1° a merely occasional cause of damage does not suffice for restitution, because it is not an efficacious cause, but only the occasion of an efficacious cause. Hence if, on the occasion of theft perpetrated by you, another was accused and condemned, you are held by no obligation of repairing his damage. - Nor 2° does an accidental cause suffice for restitution; for this is one which, considered in itself or with attention to the circumstances, does not have a probable connection with the event, and so is not to be called an efficacious cause. Hence, if you hand a sword to Titius without probable foresight of his abuse of it, you are not guilty of injustice if he perpetrates murder with that sword.

And indeed certainly efficacious; for the obligation of restitution cannot be present unless the cause of it is certainly established.

3° Theologically culpable. For there cannot be an obligation of restoring in the forum of conscience unless in the same forum an injury has been committed, nor can conscience be bound by an obligation of repairing an injury which it did not itself inflict; otherwise even those sleeping and the insane, if they inflicted some damage, would be held to restore in conscience, which is absurd. Moreover there is no injury in the internal forum where there is no theological fault; for to injury there is required a will of harming, at least indirect, or some foresight, at least confused, of unjust damage. Therefore, etc.¹

747. • III. Yet even from merely juridical fault there arises an obligation of legal justice or obedience of repairing damage; but only after sentence, and that a just one. 1. The obligation arises, since the law establishing it, as made for the common good (n. 129. R. 2°) and favoring all equally in advance, is just; wherefore the injured party safely appeals to it, even if he certainly knows that the injurer is guilty of no theological fault. 2. Legal justice etc., because that obligation is imposed by right of jurisdiction. 3. Only after sentence, since that obligation has the species of penalty, and it would be hard to oblige the guilty man to take it upon himself spontaneously without theological fault. 4. And a just one (see n. 129. R. 1°).² Mar.³ (K) p. 482.

748. Questions. - Query 1° Are you bound without theological fault concerning damage inflicted by you upon another's thing detained from contract, for example of deposit or loan for use?

Resp. There is a twofold probable opinion.

The Opinion which to S. Alph.⁴ is very probable affirms absolutely that theological fault is required. The reason is that merely juridical fault does not suffice for inducing an obligation in conscience, as is established from what was said above in principle II, unless a special agreement has intervened. But the existence of an agreement of this kind is in no way established; indeed, it is not presumed that the contracting party wished in conscience to take upon himself under grave sin so great an obligation with juridical fault alone.

749. • Query 2° Is someone without theological fault bound concerning damage inflicted in fulfilling an office, as if a physician gave a harmful remedy, a judge an unjust sentence, an advocate false counsel, a confessor a resolution damaging to a penitent or to another?

Resp. Probably negatively, as in the preceding question. The reason is 1° because the obligation of restoring on account of merely juridical fault in an office, or in a quasi-contract, cannot be proved either from natural right or from the convention of the parties; 2° because such an obligation would be harmful to the public good; for from this it would happen that upright and God-fearing men would be kept from undertaking the affairs of others, and also from public offices. S. Alph.,¹ Billuart,² Lacroix.³

Query 3° Is he bound to restitution who inculpably indeed placed a cause of damage, but afterward did not impede it, although he could have impeded it?

Resp. Affirmatively. The reason is that each one is bound from justice to impede his own action from harming the neighbor; therefore he is also bound to impede the evil following from his action from persevering, but not with equal damage to himself.⁴

Hence 1° one who inculpably set fire to another's house, when he notices the danger of the fire, is bound from justice to impede it, if he can. 2° Likewise a pharmacist who sold poison by mistake for medicine is bound from justice to warn the buyer. 3° Likewise one who by mistake said something grave against another's reputation is bound afterward, when the error is known, to correct it; and if he does not do so, he sins gravely and is obligated to reparation of all damages which come from this.

750. • Query 4° Must damage following from a cause culpably indeed placed, but already retracted when the damage is inflicted, be repaired?

Resp. Affirmatively, unless with the perverse will the influence of the cause also has been taken away. Thus, for example, if someone voluntarily gave poison to another, and afterward cannot impede its effect, however much, repenting of the deed, he may wish it, he will be bound to repair the damages coming from the homicide. The reason is that he who placed the cause of the damage always goes on efficaciously influencing it. - Thus commonly.

Query 5° Must damage indeed inflicted BY ACCIDENT, but while attending to an illicit work, be repaired?

Resp. Negatively, because that damage is not voluntary, since it was not foreseen even in confused manner. Nor does it matter that the action was illicit; for this pertains nothing to the notion of justice. Thus a cleric who, while attending to hunting against the prohibition of the Church, kills a man instead of a wild beast, is no more guilty of injustice than a layman who would have done this. Indeed damage inflicted by accident need not even be repaired, even if it happened on the occasion of an unjust action, because it has no connection with that action. Hence he is not bound to restitution who killed Titius, whom he did not at all see nor know to be present, while he was aiming a gun at Caius. - Thus most commonly. - Lugo,¹ S. Alph.²

751. • Query 6° Are you bound to repair damage which by mistake you inflicted upon someone while you intended to harm another, for example if you burn the house of Caius, which you think is the house of Titius your enemy?

Resp. They deny it with S. Alph.,³ Lugo,⁴ Lacroix.⁵ The reason is that the action was not voluntary toward the damaged person.

Query 7° Is one who gravely damages, yet with light theological fault, bound to restore under whatever fault, even very slight?

Resp. More probably negatively, because proportion is lacking both between grave obligation and light fault, and between light obligation and a grave thing. - Otherwise, if someone, prudently fearing damage from his action, voluntarily admits juridical fault to which according to the nature of the thing he was bound; for this man is guilty of grave theological fault.⁶

752. • Query 8° Is one who inflicted grave damage through several venial faults deliberately committed bound under grave sin to repair that whole damage?

Resp. 1° Affirmatively, if the damage inflicted is upon the same person, although the damager did not sin gravely. The reason is that here he is bound to repair the whole damage voluntarily and freely committed. But the whole damage was freely inflicted, and besides it is grave in the hypothesis; therefore that whole must be repaired under grave sin. - Lugo,¹ etc.

Resp. 2° More probably negatively, however, if small damages were inflicted upon diverse persons. The reason is that on the one hand no one suffers grave damage, and on the other hand the damager does not become rich from another's thing. Hence the present case differs from the similar question related above n. 717. q. 4°, because a thief becomes rich from small thefts, but not a damager.

Query 9° Is one who from invincible error thinks that the damage inflicted by him is much less than it really is bound to restore that whole damage if afterward he recognizes the true price; for example, if someone throws into the sea another's gem worth 100, while he believes it to be worth only 10?

Resp. Probably he is bound to restore only according to the proportion of the damage known; because the damage which is invincibly unknown is not judged willed. - S. Alph.,² Carriere,³ against others.

Yet an obligation of repairing the whole damage will be given if, when because of suspicion of a greater price, at least arising in confused manner, the whole damage becomes voluntary.

753. • Query 10° Is an owner bound to repair damage inflicted upon the neighbor by his animals?

Resp. 1° Affirmatively, if from theological fault he neglected to watch over the animals. For each one is bound by natural right diligently to guard his animals lest they inflict damage upon others, just as he ought to guard against detriment coming to the neighbor from his own actions.

Resp. 2° But, theological fault being set aside, he is not bound before the sentence of the judge, as is clear from principle II. n. 746; but after sentence has been pronounced, as is established from principle III. n. 747. - But by the laws according to which sentence is commonly given among us, animals inflicting damage are held until satisfaction is made to the injured party, and by public authority they are sold if the owner neglects to redeem them. But if the owner of the estate often omitted to enclose it lawfully, he can recover nothing; but he himself will be bound to repair the damage if the animal wounded or killed.⁴ Cf. n. 686.

Query 11° Is that man bound to restitution who by his bad example induced others to inflict damage, if he foresaw the efficacy of the bad example?

Resp. The more probable opinion denies it, because one who gives bad example is not the cause of the damage, but a mere occasion. For an evil action of itself does not tend to this, that it excite others to imitate it. Therefore the other damagers are determined wholly from themselves to inflicting the damage. S. Alph.,¹ Salmant., Laymann, Sanchez, Lugo, etc.

754. • Query 12° Is he bound to restitution who doubts whether he himself was the cause of damage?

Resp. There can be doubt: 1. whether a cause of damage was given, for example whether you calumniated someone; whether you were the cause of damage or only the occasion; 2. whether damage truly came to someone, suppose from your detraction; 3. whether damage which actually followed arose from that cause, for example from the calumny, or from elsewhere; 4. whether, if many were the cause of damage in the same way, for example by adultery, the effect (offspring certainly adulterine) is to be attributed to this or that adulterer. In all these doubts the obligation of restitution is to be denied; and indeed in the 1st and 2nd according to the common opinion; in the 3rd according to a sufficiently probable opinion; and in the 4th according to the more probable.² The reason is that in each hypothesis it is a question of a doubtful obligation, by reason either of the cause or of the effect.

Except, as to the 4th doubt, if the second adulterer, knowing adultery to have been committed by another, had intercourse with the adulteress, noticing that he by his second adultery becomes the cause of uncertainty whether support can be exacted from the first adulterer. But the reason indeed is not valid for the earlier adulterer, who would think nothing concerning future adulteries. And for the second to be bound, it is further required that he notice that damage which can come from his adultery; because nevertheless this advertence will be very rare, the obligation of this adulterer also will be very rare. - 2° If several adulterers from common counsel perpetrated adultery.²

755. • Query 13° Are you bound to repair damage coming to someone on the occasion of your unjust action, for example if you stole, and the theft is imputed to him?

Resp. 1° Certainly negatively, if you did not foresee that damage. This is clear from what was said above in principle II. n. 746.

Resp. 2° Also more probably negatively, although you foresaw this damage. The reason is that your action, placed with the foresight alone of the damage, must be held not as the per se cause of it, but only as the cause by accident. It is established also from the second principle, ibid. Except if at any time the circumstances were such that they morally proximately influence the grave suspicion and condemnation of another. - S. Alph.,¹ Lacroix,² etc., against others.

Resp. 3° Indeed probably it must also be denied, although you acted deliberately so that your action would be imputed to him, because this action is always only the cause of the damage by accident and not per se; for from its nature it did not efficaciously influence that damage. For a depraved intention does not effect that the work is unjust which of itself is not unjust with respect to a third party. Yet it must be excepted if someone used those means which would furnish a very grave suspicion for accusing another, for example if he dressed himself in his clothes to perpetrate homicide, threw away these stained with blood, etc. - S. Alph.,³ Lessius, Vogler, against others.

756. • Query 14° Is an unjust distributor of offices bound to restitution?

Resp. 1° More probably he is bound to nothing toward the worthy person passed over, the case of competition being set aside, because he violated the strict right of no one. - S. Alph.,⁴ and others commonly.

Resp. 2° By reason of the election of an unworthy person he is certainly bound toward society concerning all damages thence coming. The reason is that there is judged to be present an agreement of strict justice between society and the elector, by which the latter is bound not to elect unworthy ministers. - Thus commonly.⁵

But more probably he is bound to nothing by reason of the election of one less worthy, although he can sin gravely. The reason is that society is not judged to oblige electors by the title of commutative justice to elect the worthier.⁶

757. • Query 15° Is he bound to restitution who impeded another from the obtaining of some good or benefit?

Resp. 1° Affirmatively, if the neighbor has a strict right to obtaining the thing, as if you impede a creditor from obtaining payment.

Resp. 2° If the neighbor does not have a strict right to obtaining the thing, a distinction must be made. 1° It must be affirmed if this is impeded by unjust means, for example force, fraud, calumny, fear, etc. Namely, then he is obligated to compensation of damage according to the judgment of a prudent man, according to the certitude or probability which the other had of obtaining that good, provided nevertheless he is worthy and could have obtained that good without injustice; for if he were unworthy, the one impeding would not be bound except to restitution of reputation, if perhaps he injured this unjustly.¹ 2° It must be denied, however, if it is impeded by means just in themselves, for example persuasion, prayers, etc. The reason is that then no right of the other is violated, neither in itself nor in the means. - Thus commonly.²

Query 16° Are you bound to restitution if from an evil intention, for example from hatred, yet with means of themselves unjust set aside, you turn another away from the obtaining of a good to which he does not have a strict right?

Resp. More probably negatively. The reason is that no injury is inflicted upon the neighbor. For evil intention does not suffice for injury, but there is required an external action which is the true and efficacious cause of unjust damage. - S. Alph.³ and others more commonly against others.

Query 17° Must someone in danger prefer another's thing to his own, so that he is bound concerning damages if he does not prefer it?

Resp. The contract by force of which he has another's thing either yields for his utility only, or for the utility of the other only, or for the utility of both. If the first, as if he received the thing by loan for use, he ought to prefer that thing to his own, or, if his own is much more precious, to make the owner harmless concerning the price of his thing, because for his benefit alone the thing of another was brought into ruin. - If the second, as for example if I received the thing by deposit, a distinction must be made. If this is much more precious, I ought to conserve it; nevertheless I can exact compensation of the whole damage which I suffered by preserving it. If my thing is equally precious, I am not bound to prefer another's thing to mine, since I retain it for the utility of that man alone.⁴ If the third, as for example if as a broker (agent) I have been hired for a price to sell another's thing, there are those who think that, other things being equal, I can prefer my thing, since charity does not oblige me to prefer another's thing to mine in equal necessity; but others think that some compensation is owed to the other party, which seems more just to Varceno.⁵

758. Cases. - 1° Didacus at night puts away in a corner of the house a very precious crystal vase of Caius, by which no one was soon going to pass, intending to place it in a safe place very early in the morning. But Basilius, entering the house that same night without light, strikes against the vase and breaks it. What is the law? - Resp. Neither Didacus nor Basilius is bound to restitution, because on the part of each theological fault is lacking; for neither thought about damage or the danger of it. Indeed neither one would be bound if he had foreseen some very remote danger, because in morals attention is not paid to mere possibility.

2° Quirinus, intending to steal cloth, enters a workshop at night and lights a candle, employing diligence to avoid every danger of fire; but by an unexpected event, namely the leap of a cat, the candle is thrown into straw, and in a short time the whole workshop is burned, and the thief barely escapes unharmed by taking flight. What of Quirinus? - Resp. He is bound to nothing, because he in no way foresaw the danger. Indeed he is not bound concerning the cloth which he wished to steal, even if he had seized it, because even that damage is involuntary; nor is the seizure of the cloth the cause of the damage, nor did the carrying of the candle create a proximate danger of fire when sufficient caution had been employed. Yet if the thief had not only seized the cloth, but had consummated the theft by withdrawing it from the power and custody of the owner, when by accident, for example by the lit candle, the cloth was burned, he would be bound concerning it, as is said concerning any stolen thing which perishes by fortuitous event with the thief. - Thus Lugo,² Lacroix.³ Cf. n. 734. 1°.

3° Pomponius, impelled by a mind of revenge, while seen by no one, discharged a shot at a goat of Marri grazing peacefully in the estate of the owner; but instead of the goat, which was unharmed, he struck and killed a cow of Marinus lying behind a hedge, while he was wholly ignorant of it. To what is Pomponius to be obligated? - Resp. To nothing. For he is not bound to anything for the aforesaid goat, since it remained unharmed; nor for the cow, since he in no way foresaw its damage. But what if the cow belongs to the same owner? The difficulty increases, since the damager truly intends to inflict damage upon such a person; for although he does not destroy the thing specially intended, since in general he wishes to harm the enemy, the damaging action which he places seems formally injurious to the same owner. Nevertheless, standing in the rigor of the principles, he can still more probably be excused, if in no way, not even in confused manner, did he foresee this other damage. For it can be said that it happened merely by accident; nor does the depraved intention of harming the same man make the damage of a thing wholly unknown become voluntary. It is otherwise, however, if, wishing generally to harm the enemy as much as he could, he had known somewhat in confused manner various objects to be damaged. Recall what was said n. 746 and 755.

4° Sidonius, seeing Justin passing by and thinking that he is Titius, says to his companions: Look, that man is not the standard-bearer of the scrupulous! ... But he is a worthless man, a thief, fornicator, and drunkard. Query: What must Sidonius do when the error is detected? - Resp. He must retract the things said before the same companions, although involuntarily he said these things against Justin; and if he does not do so, he will be bound to repair all damages which follow from the defamation. Cf. n. 749. q. 3°.

5° Babinus, by repeated prayer and flatteries, yet with all deceit set aside, induces Roger, who is dying, to tear up the will already made in favor of Paul, so that he himself, or a friend or blood-relative, may be constituted heir. But Babinus is determined to do this, besides his own advantage or that of a friend, from inveterate hatred which he cherishes against Paul. Is Babinus guilty of injustice? - By no means. For although on account of hatred he has sinned gravely against charity, nevertheless more probably he has not injured the virtue of justice, because he has violated no strict right of Roger. The same would have to be said if someone from hatred had turned the testator away from constituting Paul heir, so that anyone else would be constituted in his place. - Recall what was said n. 757. q. 15°. q. 16°.

6° a) John intercepts letters by which Paul seeks some office, and thus impedes him from obtaining that office. b) Peter, the secretary of the Governor, sets aside a little the letters by which Caius was demanding some office, so that the office meanwhile may be conferred upon Titius. c) Iphigenius reads letters sent to Cornelius and opened by accident, and uses the knowledge derived from this for his own advantage, but without any damage of Cornelius. d) Antony, a secretary hired by Hubert for a price, uses knowledge received on occasion of his office to the detriment of Hubert, or even of those who wrote letters to this man. To what are John, Peter, Iphigenius, Antony bound? - John, Peter, and Antony are bound concerning the damage respectively toward Paul, Caius, Hubert, or those who wrote letters to this man, since they used unjust means to impede them from the obtaining of a good. And indeed John and Peter are bound to compensation to be estimated according to the reason of the hope which shone upon Paul and Caius of obtaining the office. But Iphigenius is bound to nothing, since he inflicted no damage.

7° Charles persuades the Governor to choose Patrick rather than Kilian, otherwise certainly to be designated, for an office. To what is Charles to be obligated? To nothing, provided that in persuading he used no fraud, calumny, or other unjust means. (n. 757. q. 15°.)

8° Hilary a) from hatred toward Philip induces the notary that in favor of Philip an act not be done before him, which otherwise will be invalid; b) in order to harm Bertha, otherwise to be instituted heir by Caius, he craftily removes the secretary, or another suitable person for drawing up a will, lest the dying Caius use his work, who will scarcely have the work of another. Is Hilary guilty of unjust damaging? He certainly is in the former case, because, since the notary by force of his office was bound to furnish his work to Philip, who, as is supposed, asked for it, he deprived Philip of his strict right. Resolve the same of itself in the latter case. I say: of itself; for since everywhere among us the will of a dying man can obtain force also in another way, namely by declaring it before witnesses, there will scarcely be an obligation of restoring to Bertha, unless force was employed by Hilary lest the will be made in any manner in which it could be valid.

9° Felix a) detains a messenger lest a business useful to Ferdinand be transacted; meanwhile he uses the occasion for his own utility. b) Elsewhere he hires all the post-horses in the town for a price lest the same Ferdinand betake himself to a certain place, where he would have made an immense gain. Is Felix bound to make Ferdinand harmless? A distinction must be made. If by force or threats he detained the messenger or hired the post-horses, affirmatively. If only by persuasion or art, negatively, unless the messenger had been hired by Ferdinand, or by another contract ought to have conducted Ferdinand's business.

291. The damaging action must be truly unjust, that is, violate the strict right of another and consequently injure commutative justice; otherwise it would not be an injury strictly so called, nor would it bring the obligation of restoring. But it is unjust:

1. if it takes away or destroys a thing in which another has a right in the thing;

2. if in any way it impedes that a thing be had by another, to which another has a right to the thing;

3. if by an unjust means it impedes another from justly obtaining some good to which he does not have a strict right, because each one has a strict right not to be impeded by an unjust means from obtaining a good. In this case, the damager must repair not so much the good itself, unless it would certainly have been obtained, but rather the hope of obtaining it, which he injuriously snatched away from the other.

Hence a) he is not bound to restitution who, while he uses his own right, harms others; for example, he who, by intercepting veins of water or by trading justly, is the cause why another takes or sells less; he who by mere persuasions, counsels, or prayers persuades another not to make a legacy or confer an office on another who does not have a strict right to it; he who, fleeing from enemies, tramples another's crops;

b) on the contrary, he is bound (whether an advocate or a judge) who impedes a creditor from obtaining payment of a debt, or by persuasions induces a master not to pay wages to a servant;

c) a fortiori he who uses unjust means, namely force, fraud, deception, calumnies, unjust divulgation of a secret, or detraction, for harming another; for example, he who by force or fraud impedes an uncle from making a testament in favor of a nephew or friend, or a notary from writing it; he who by calumnies prevents a rich man from bestowing alms on such a poor man, or a superior from conferring an office on someone worthy; he who, by unjustly defaming a servant, bars him from his service; he who, by intercepting letters or spreading calumnies, harms other merchants in trade; he who, by a false title of consanguinity or of service furnished, extorts gifts, money, or legacies; he who, pretending to be poor, obtains alms: this last, however, ordinarily will be able, from the intention of the owner, to restore to other poor persons, unless the matter concerns a gift of greater moment;

d) but he is not bound who by either just or unjust means impedes someone from the attainment of an illicit good, which, namely, could not licitly be conferred or accepted, because there can be no right at all to obtaining it; for example, he who, by uncovering hidden crimes or even by calumniating, impedes an office from being conferred on someone inept or unworthy; he who turns away a prodigal man from giving to one who pretends to be poor.

292. The damaging action must be efficaciously unjust; for this there is required damage that has followed in fact — and not only been intended — and indeed from the action as from its cause per se, which, namely, flows into the damage from its nature and proper force, and from which it follows of itself necessarily. For no one is bound to repair damage unless he truly is the author of the damage, that is, unless physically or morally, through himself or through another, he was its true efficient cause, total or partial. Therefore the intention alone of the damage, or occasion, or condition, or cause per accidens is not sufficient.

Hence he is not bound to restore: 1) who, with the intention of harming, posits a damaging act when the effect has not followed: for thus commutative justice is injured affectively, but the right of another was not injured effectively;

2. who was the sole occasion of damage, for example, he who by evil examples of fraud or theft found imitators; he who, after theft or homicide had been committed, provided an occasion for suspecting or punishing an innocent man, even if he intended this, since not he, but the accusers and condemning judges, are the true cause of the injustice; — unless, however, he exercised some influence into it, as if by design he used another's clothing or instruments so that the other might be accused: for then he is a moral cause positively moving to this, that the other be held as guilty;

3. who was a mere condition without which the injustice would not have been committed: thus one who furnishes or sells to another poison, weapons, or instruments by which a crime is perpetrated; — unless, however, this were done with that end manifested in some way, or the means were determinately handed over or sought precisely for an unjust action: for then he would be a cooperating partial cause (n. 247, 1);

4. indeed, who is only a cause per accidens, even if he intends the damage: for then the action of the agent does not have a sufficient connection with the damaging effect, but that effect is produced by the concurrence of another cause to which it must be imputed. Thus one who serves wine to a drunkard, foreseeing great damage from drunkenness; one who lightly wounded someone who dies from the inexperience of the physician; one who infects a cup with poison but places it in a very remote place to which the enemy is not accustomed to go, yet wishing that he drink, as in fact happens; one who takes away from an avaricious man a thing of small value, even with the intention that he die from sadness: for the true cause of this death is not the theft, but avarice. A fortiori one who did not close the door so that a thief might be able to take away silver vessels, while the thief entered through a window, because the damage did not follow from the omission of not closing the door. Likewise, one who lightly wounded someone who dies from the inexperience of the physician is bound concerning the wound, not concerning the death. And one who kindles a fire in a remote place which a wind unexpectedly throws into the crops is not the per se and responsible cause of the conflagration; otherwise, if he kindled the fire when a wind had already arisen and while foreseeing the burning, because this would be, as it were, to conspire with the wind and to use it as a means to a harmful effect.

293. The damaging action as such must be formally unjust or culpable. — For no one is bound concerning his actions and their effects unless they are voluntary and free; whence a non-voluntary act per se imports no obligation. But a damaging action which is not formally unjust and culpable, according to this, is not voluntary and free. Therefore per se it does not import an obligation of restitution. And indeed: a) the obligation of restoring arises from a thing received or from unjust taking; but in the case there is no unjust taking, because no one does injury unless willing; b) besides, restitution on account of unjust taking is after the manner of a penalty; but penalty supposes fault.

Nevertheless, a twofold fault is distinguished by moralists: 1) moral fault and fault in conscience (by others it is called theological and before God), which proceeds from deliberation of reason and free consent of will; concerning which we have spoken above; 2) juridical fault and fault before the law, which arises from omission of due diligence required by law; from which defect of reason, coercion, fortuitous chance, and other legal causes excuse, but not simple inadvertence; and therefore it can be present without truly culpable negligence, in which case it is called merely juridical fault. Nevertheless, the law requiring greater diligence on account of the common good is just and therefore to be observed, because it favors all citizens equally for the security of dominions, and makes men more watchful lest they inflict damage on others.

And therefore, although true moral fault is per se required for inducing an obligation of restitution in conscience, per accidens merely juridical fault sometimes suffices, namely:

1. after the sentence of a judge compelling restitution: for since restitution from merely juridical fault is a mere penalty, it does not obligate until after it has been inflicted;

2. from a contract explicit or implicit, by reason of a special obligation which someone has assumed upon himself of repairing damage in any case whatever, even without moral fault; then, however, it is rather payment than restitution strictly so called.

Hence a) a physician who from inculpable error furnished a harmful remedy to a sick man neither sinned nor is bound to restitution;

b) a confessor who from inculpable error freed a penitent from an obligation of restitution, whom he cannot admonish concerning this, neither sinned nor is bound to reparation of the damage;

c) a man who by entirely fortuitous chance without any negligence killed another neither sinned, nor is he obligated to reparation of material damage perhaps inflicted.¹

¹ Cf. Prummer, Th. M. II, n. 96.

An unjust damager is called one who harms his neighbor in the goods of fortune, and yet does not thereby become richer. One is formally unjust and another juridically only unjust, according as the fault was theological or juridical. - But theological fault is called that which includes an offense against God, that is, formal sin, whether mortal or venial. But juridical fault is the omission of diligence, whence damage comes to another, whether it is a formal sin or not. This again is distinguished, and from the common interpretation of Roman law, is gross, slight, very slight. Gross fault is the omission of diligence which men are commonly accustomed to apply in similar affairs. Slight fault is the omission of diligence which the more prudent and more diligent men are accustomed to apply. Very slight fault is the omission of diligence which is customarily applied only by the most prudent and most diligent. - Cf. St. Alphonsus, n. 549. - Kenrick, tract. 10, part. 2, n. 177.

I say. An unjust damager is held to restore the whole of that which is equivalent both to the thing damaged and to the foreseen damages arriving beyond the thing damaged itself. The reason is that otherwise the injured owner would not be made altogether indemnified, which is required for repairing justice. - But in order that he be held to this from natural right, and consequently in the forum of conscience, before any sentence of the judge, it is necessary that he have damaged truly, efficaciously, and formally. Truly indeed, insofar as he violated a strict right through the injury of commutative justice; efficaciously, insofar as he was not only the occasion, but the proper cause of the damage, so that the effect can and must be imputed to him; formally at last, insofar as he adverted to the unjust action and properly sinned before God. - I said before any sentence of the judge, because after the sentence of the judge an obligation of restoring can arise in conscience even from merely juridical fault. For one must obey the just sentence of a judge; otherwise the laws would not provide for public security and would be empty. But the sentence of which we are speaking is just, because that law is enacted for the common good and tends to making men more cautious, lest they inflict damage on others. - Cf. St. Alphonsus, nn. 550 and seq.; and Hom. Ap., nn. 29 and 41. - Billuart, dissert. 7, art. 4.

Question 1. Whether theological fault is required for inducing the obligation of restitution for damage inflicted upon another's thing, which was held from some contract, for example, of lease, deposit, or loan for use, etc.?

Resp. It is controverted; but the affirmative opinion is, according to St. Alphonsus, very probable unless a special pact intervened. The reason is that the obligation of repairing an injury ought to pertain to the same forum to which the injury itself pertains. - I said unless a special pact intervened, because then a special obligation is knowingly and freely assumed. But theologians who hold the negative opinion affirm that this special pact is always present, not indeed expressly but implicitly; but they prove this by no solid argument. Cf. St. Alphonsus, n. 554. - Lugo, disp. 8, n. 106. - Lacroix, n. 177. - Antoine, part. 2, cap. 3, qq. 2 and 5.

Question 2. Whether he is held to restitution who indeed inculpably placed the cause of damage, but afterward did not prevent it, although he could have prevented it?

Resp. Affirmatively, and the reason is that each one is held from justice to prevent his action from harming his neighbor; therefore he is held also to prevent the evil following from his action from persevering; and consequently, once the error is known, he must correct it, and if he does not do so, then he sins gravely and assumes the obligation of repairing all the damages which come from this. Cf. St. Alphonsus, n. 564.

Question 3. Whether damage following from a cause culpably indeed placed, but already retracted when the damage is inflicted, must be repaired?

Resp. Affirmatively, at least if that damage was determinate and foreknown in species. The reason is that the damager then properly contracted the whole malice and assumed the obligation of restitution; but then he harmed not only affectively, but also by acting effectively and really. Therefore in this way too he must repair the injury, and simple retraction of the will does not suffice.

Question 4. Whether damage inflicted per accidens indeed, but while being occupied with an illicit work, must be repaired?

Resp. Negatively, because that damage is not voluntary, since it was not foreseen even confusedly. Nor does it matter that the action was illicit; for this pertains nothing to the notion of justice. Thus a cleric who, by being occupied with hunting contrary to the prohibition of the Church, killed a man as though he were a wild beast, is no more guilty of injustice than a layman who had done this. - Cf. Vogler, n. 170. - Lugo, disp. 8, nn. 72 and 82. - St. Alphonsus, Hom. Ap., n. 39.

Question 5. Whether you are held to repair damage which you inflicted upon someone by error, while you intended to harm another, for example, if you burn the house of Caius, which you think to be the house of Titius, your enemy?

Resp. It is much controverted among theologians, but with St. Alphonsus and others the negative opinion seems probable. The reason is that in this case the damaging action is materially only unjust toward Caius and affectively only unjust toward Titius. It is indeed true that then all the conditions required for urging restitution from unjust damaging are verified, but not in relation to the same person, which is altogether necessary. - Cf. St. Alphonsus, n. 620. - Lugo, disp. 17, n. 75. - Lacroix, n. 200.

Question 6. To what is he held who indeed inflicted grave damage but with light fault, for example, from defect of advertence, etc.?

Resp. More probably he is held to nothing. For he cannot be obligated either under grave obligation or under light obligation: not under grave, because grave obligation does not have proportion with light fault; not under light, because light obligation does not have proportion with a grave thing. - Cf. St. Alphonsus, n. 552. - Lugo, disp. 8, n. 56. - Vogler, n. 109.

Indeed the opinion of those who deny that there is a grave obligation of compensating grave damage inflicted by deliberate theological fault, but only venial fault on account of ignorance or inadvertence to formal gravity, even if the material and objective gravity is known, is probable. For this obligation is not certain; if it were given, it would be either from the thing accepted, or from unjust taking. But not from the first, because the thing is supposed no longer to exist either formally or equivalently; not from the second, because the obligation of restoring ought to be proportioned to the act itself insofar as culpable, and indeed against commutative justice, for the violation of which it is, as it were, a penalty, which cannot be above the demerit. But here the fault is light, and since, where no fault intervenes, there can be no natural obligation, so neither can there be a grave obligation where grave fault has not intervened. Finally, a grave natural obligation does not arise from a light sin, if there is no advertence to the objective gravity, or the material gravity of the damage, or the formal gravity. Cf. Wirceburg, vol. 6, n. 585.

Question 7. Whether he who inflicted grave damage through several venial faults deliberately committed is held under grave obligation to repair that whole damage?

Resp. 1st. Affirmatively, if the damage inflicted is upon the same person, although the damager did not sin gravely. The reason is that here he is held to repair the whole damage voluntarily and freely committed; but the whole damage was freely inflicted and besides is grave by hypothesis; therefore that whole damage must be repaired, and if the damager does not do this, then indeed he will sin gravely. But otherwise one must answer, at least probably, if minute damages were inflicted on diverse persons; because no one has suffered grave damage, not even radically, as when small little thefts are committed. Cf. Vogler, nn. 124 and 126. - Lugo, disp. 8, n. 69.

2nd. But others deny: for it makes little difference whether the objective gravity of the damage is known all together in one taking, or successively in several, if in neither is the formal gravity known. Those individual damagings were light; the formal gravity also was not known. In this case several light obligations can coalesce into one grave obligation just as little as several light sins into one mortal sin. Cf. Wirceburg, vol. 6, n. 587.

Nor should you say that this opinion is identified with proposition 38 condemned by Innocent XI: One is not held under pain of mortal sin to restore what was taken away by a few thefts, however great the total sum may be. But this is not to the point, for even if you prescind from the present question, that proposition was most justly transfixed, because it says universally that there is no grave obligation of restoring what is taken away by several smaller thefts. For certainly this obligation exists if, before he committed the last small theft, the thief adverted that he was completing a grave sum; if he had from the beginning the intention of inflicting grave damage by several little thefts; finally, if those little thefts still exist in the thief's possession either formally or in equivalent. In these cases a grave obligation is certainly given; but from the condemned proposition it does not follow that it is present when the formal gravity of the damage is not known.

Question 8. Whether you are held to repair damage coming to someone on the occasion of your unjust action, for example, if you have stolen and the theft is imputed to him?

Resp. Negatively, whether you did not foresee or did foresee that damage, indeed even if you acted deliberately so that your action would be imputed to him. The reason is that the intention, however unjust, does not make that work externally and materially also unjust with respect to a third party, when of itself it is not such. Except, however, if at some time the circumstances were such that between them and a grave suspicion concerning another there would be a true connection, or if someone expressly used those means which of themselves provide a most grave suspicion for accusing another. Cf. St. Alphonsus, nn. 635 and 636. - Lacroix, n. 157.

Question 9. Whether an owner is held to repair damage inflicted upon a neighbor by his animals?

Resp. Affirmatively, if from theological fault he neglected to watch over the animals. For each one by natural right is held diligently to guard his animals, lest they inflict damage on others, just as he must guard against detriment coming to his neighbor from his own actions. But, theological fault being excluded, he is indeed not held before the sentence of a judge, but he is certainly held after the sentence, as is clear from what has been said.

But as regards us, Kenrick has these things: "By most American laws, as also by English laws, animals inflicting damage are detained until satisfaction is made to the injured person, and they are sold by public authority if the owner neglects to redeem them. But if the owner of the estate omitted to enclose it with a lawful fence, he can recover nothing, but he himself will be held to repairing the damage, if he has wounded or killed the animal." - Cf. Kenrick, tract. 10, part. 2, n. 185.

Question 10. Whether he is held to restitution who prevented another from obtaining some good?

Resp. 1st. Affirmatively, if the one impeded has a strict right to that good. 2nd. If he does not have a strict right to obtaining the good, one must distinguish: Affirmatively, if by unjust means he is impeded from obtaining the good; for anyone has a strict right not to be impeded unjustly from the obtaining of a good of which he is not unworthy. In this case restitution must be made according to the certainty or probability by which he is judged otherwise to have been going to obtain such a good. Negatively, if he is impeded by means just in themselves, because then no right of another is violated. - Cf. St. Alphonsus, Hom. Ap., n. 61. - Lacroix, n. 69. - Laymann, l. III, tract. II, cap. VII.

Hence he exists as obligated to restitution toward a son who induces the father to exclude him from an inheritance to which by civil law he has a strict right. Likewise he is held to restitution who, by lies scattered against a poor man, prevents alms from being given to him. Those sellers also are held to restitution who unjustly detract from other sellers and from the merchandise for sale among them, in order that they may turn buyers away from them and entice them to themselves.

Note. A twofold fault is distinguished : one theological, the other juridical. Theological fault is formal sin before God, whether mortal or venial. Juridical fault is the omission of some diligence from which damage follows to another. Such an omission, I say, jurists call a fault, even if perchance it be not a fault before God, for example because it is either involuntary, or is not of such diligence as one is bound to employ. But if it be a voluntary omission of such diligence as one can and is bound to employ, it will be at once both a theological and a juridical fault.

Juridical fault is divided into gross, light, and lightest. Gross fault is the omission of the diligence which prudent men are accustomed to employ in such a case, in such a business; as if someone go out of the house without having closed the door of the inner room.

Light fault is the omission of the diligence which the more prudent are accustomed to employ; as if someone go out with the door of the room indeed closed, but not bolted.

Lightest fault is the omission of the diligence which the most prudent are accustomed to employ; as if someone did not try with his hand whether a closed and bolted door were well bolted.

It is asked, therefore, whether in simple damaging, in which no gain accrues to the damager, theological fault is required, or that he have sinned before God, in order that he be liable to restitution, or whether juridical fault suffices. Concerning which :

I say : No one, contract set aside, is bound to restitution by reason of damage inflicted before the sentence of the judge, unless he have admitted theological fault against commutative justice in inflicting the damage. This is the common teaching against Adrian and certain ancient authors.

Proof. The damager, in the case proposed, is not bound to restore by reason of a thing received ; because, as is supposed, he received nothing, nor has he been made richer by the damage : nor by reason of an unjust action ; for where there is no fault before God, the damaging action is not formally unjust : nor from positive law ; for none can be assigned outside of contract. Therefore from no heading is he bound to restore,

It is confirmed. If damaging merely materially unjust induced the obligation of restoring, it would follow that a madman, or one asleep, or one who damaged his neighbor by a mere chance event, would be held to restitution ; which no one admits.

Therefore, however much damage to another may follow from your act, if you have not truly sinned before God, either because you employed the due diligence, or because you omitted it through natural inadvertence or blameless forgetfulness, although it is called gross fault in law, you are not held to restore in the forum of conscience before the sentence of the judge.

And this is true even though the damager deal with a thing illicitly, provided it be not dangerous and as it were a way leading to damage, such that neither per se nor in the majority of cases does damage follow from it, nor could it have been foreseen in a human way as about to follow; because, although the cause is voluntary, it is nevertheless not voluntary as the cause of such damage, which could not be foreseen in a human way as about to follow from it. Hence, if while hunting in a prohibited place or time you kill a man, thinking invincibly that you are killing a wild beast, you are not held to restore on account of the homicide.

I said, « before the sentence of the judge ; » because the judge, where there is gross juridical fault, though there be no theological fault, through natural inadvertence or some other case, is accustomed to condemn the damager to restitution or rather to payment, or to the surrender of the animal, if the damage was inflicted through an animal, unless it be otherwise certainly evident that he is innocent. And the damager is held, more probably, to obey this sentence as just in the forum of conscience. For this sentence does not rest upon a false presumption, as certain ones think; because the judge condemns you not because he presumes you have sinned internally before God, but because you have sinned externally, that is, because you omitted the diligence which prudent men are accustomed to employ, on account of which juridical fault, though not theological, the laws decree the obligation of restoring, with the sentence of the judge supervening.

And indeed justly, both because gross juridical fault usually proceeds from theological fault, although the contrary sometimes occurs per accidens, and laws attend to what happens for the most part; and on account of the common good, namely that men be more attentive in guarding their own goods, and more cautious in avoiding damage to their neighbor.

[You will ask whether he is held to restitution who blamelessly placed the cause of the damage, if afterward he neglect to remove it.

I answer, affirmative ; because he who placed the efficacious cause of the damage, and does not retract it when he morally can, wills it virtually, and consequently becomes at that moment strictly, effectively and formally the unjust cause of the damage³⁵¹. ³⁵¹ S. Lig., lib. VI, n. 621.

I said, « when he morally can, » that is, without great and proportionate inconvenience, as is commonly taught.]

MANY assert that only he who is the true Cause of the Damage is subject to restitution, without whom the damage would not have been. Innoc. cap. sicut dignum, extra de homic.; Hostiensis there; Altissiodorensis lib. IV. tract. de Poenit. cap. de Restit. quaest. 3; Rich. 4. dist. 15. art. 5. quaest. 4; Sylvest. V. Restit. 3. quaest. 6; Adrian. 4. quaest. 4. de Restit. §. De concurrentibus cum fure; Nau. man. cap. 7. num. 20; Caspensis disp. 1. sect. 9. §. 2; Bassaeus V. Restit. 3. num. 3. §. 2. Because otherwise the causes would be inefficacious.

THE OPPOSITE is held by Caietanus here, art. 7; Ioan. Medin. quaest. 7. de Restit.; Sotus lib. IV. de iustit. quaest. 7. art. 3; Valencia disp. 5. quaest. 6. puncto 3. The reason is, because they operate efficaciously. This was the view of D. Bonavent. in spec. animae, cap. 2, and Clatius cap. 1. §. Damnificatio. Therefore the Advocate who unjustly defends a Client is bound to Restitution — otherwise, one who would still unjustly covet the inheritance, which he would invade by others if he did not otherwise obtain it.

IT IS PROVED from the Holy Doctor. That is a true cause, posited, the effect is posited, as the Holy Doctor and others say. For if many wished to kill Peter, would not one who alone killed him be guilty of injustice, even if he would have to be killed by the others? See Valencia, and Caietan.

Philip, a Catholic, placed poison in his garden to kill harmful animals. Sometimes he had found a cat or even a dog killed by the poison in the garden, when the thought occurred to him: “Would that this valuable dog of my neighbor Caius were killed in this way, for Caius has often been troublesome to me, and not rarely have I found his dog entering my garden.” Therefore, led by the hope of killing the dog of Caius, which is descended from the breed called Saint Bernard, he placed a larger quantity of poison, and the next morning found that unfortunate dog dead in a corner of the garden. After it was buried, his conscience pricked him concerning restitution to be made. Hence it is asked:

1. Can the intention make an external act unjust?

2. What is an occasional cause and an accidental cause of damage?

3. When is one who posits the cause of another’s damage excused from making restitution, even if the damage was foreseen or desired?

4. What is to be said of the case?

1. Can the intention make an action unjust which otherwise is not unjust? Some theologians, with Lugo, assert that it can, but the common opinion is against them. For the intention with which an action is done does not alter the nature of its influence on the effect produced, and whether an act is unjust or not, depends on this influence.¹

1 St. Alphonsus, book iii, no. 584.

2. What is an occasional, and an accidental cause of damage?

An occasion is that which, being put, an effect follows from some other cause. Thus if A murder B, and C is taken up on suspicion, A is the occasion of C’s arrest. An accidental cause is that from which the effect was not probable, though possible, as if A digs a trench where few people pass, but B, a blind man, passes that way, falls into the trench, and is killed; A is the accidental cause of B’s death.

3. When is one who puts the cause of another’s damage excused from making restitution, even though the damage was foreseen and desired? Besides theological fault, it is necessary that the action of him who is to be obliged to make restitution be the efficient cause of the damage, and that it be unjust. For unjust actions alone impose the obligation of making restitution, and nobody is bound to make restitution for damage which he did not cause.

4. The case. Philip poisoned his neighbor’s dog out of spite. He certainly committed a grave sin against charity. But as he put the poison in his own garden, into which his neighbor’s dog sometimes strayed, his action was not the efficient cause, but only the accidental cause of its death. He may therefore be excused from the obligation of making restitution, according to the better opinion.